Vandamme Jeanty v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 27, 2023
• Docket: 02-21-00159-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-21-00159-CR ___________________________

VANDAMME JEANTY, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 158th District Court Denton County, Texas Trial Court No. F16-887-158

Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

Appellant Vandamme Jeanty, appearing pro se, appeals his conviction for

fraudulent use or possession of identifying information, a state-jail-felony offense. We

will affirm.

I. Background

In 2016, a grand jury indicted Jeanty for fraudulently obtaining or possessing

Mary Stella’s identifying information. At trial, Mary,1 a Florida attorney, recognized

Jeanty as having “lurk[ed] and follow[ed]” her during her representation of Bank of

America in litigation against Jeanty’s acquaintance Carline Merisier. Mary testified that

Jeanty had been “mentioned prominently” throughout Merisier’s suit against Bank of

America.

Merisier is also involved in the instant case. She and Jeanty were accused in the

instant proceedings of using Mary’s information to apply online for and successfully

open a $20,000 line of credit with Nebraska Furniture Mart. The pair was arrested

after they used that line of credit to purchase a high-end vacuum and to attempt to

purchase two expensive televisions.

A jury convicted Jeanty and assessed his punishment at eighteen months’

incarceration and a $3,968.42 fine. The trial court sentenced him accordingly. This

appeal followed.

1 Mary Stella is the victim’s married name; her maiden name is Mary Pascal. For clarity, we refer to her by her first name.

2 II. Discussion

In fifteen often interrelated points, Jeanty argues, among other things, that the

trial court erred by granting the State’s motion to amend the indictment; that the

evidence was legally insufficient to support Jeanty’s conviction; that the jury charge

was defective in various respects; that the trial court erred by admitting certain of the

State’s evidence; that the trial court erred by submitting the State’s theory of party

liability to the jury; and that the cumulative effect of all these errors warrants reversal

of Jeanty’s conviction. We will address each of these points—all of which lack

merit—in turn below.

A. Point One: The Amendment of the Indictment Was Proper

In his first point, Jeanty argues that the trial court erred by granting the State’s

motion to amend the indictment. Because it presents a question of law, we review the

trial court’s decision to permit amendment of the indictment de novo. See Smith v.

State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010).

1. The Indictment’s Amendment

To convict a defendant of fraudulent use or possession of identifying

information, the State must prove beyond a reasonable doubt that the defendant

“(1) obtain[ed], possesse[d], transfer[red], or use[d] an item of identifying information

of another person; (2) without the other person’s consent; and (3) with the intent to

harm or defraud.” Sanchez v. State, 536 S.W.3d 919, 921 (Tex. App.—Houston [1st

Dist.] 2017, no pet.) (citing Tex. Penal Code Ann. § 32.51(b)(1)). “[T]he phrase ‘item

3 of identifying information’ refers to any single piece of personal, identifying

information enumerated in the definition of ‘identifying information’ that alone or in

conjunction with other information identifies a person . . . .” Cortez v. State, 469

S.W.3d 593, 602 (Tex. Crim. App. 2015). Among these enumerated examples are a

person’s “name and date of birth” and a person’s “social security number or other

government-issued identification number.” Tex. Penal Code Ann. § 32.51(a)(1)(A),

(E).

The grand jury’s initial indictment read as follows:

THE GRAND JURORS, in and for the County of Denton, State of Texas, duly organized, impaneled, and sworn as such, at the January Term, A.D., 2016, of the District Court of the 362nd Judicial District in and for said county and state, upon their oaths, present in and to said Court that VANDAMME JEANTY, who is hereinafter styled defendant, on or about the 9th day of November, 2015[,] and anterior to the presentment of this Indictment, in the county and state aforesaid, did then and there, with intent to harm or defraud another, and without the consent of Mary Stella, obtain or possess less than five (5) items of identifying information of Mary Stella, to-wit: name, date of birth, or social security number; against the peace and dignity of the State. Because the indictment deviated from the language of Section 32.51 of the Penal

Code in certain respects—including listing “name” and “date of birth” as separate

“item[s] of identifying information”—the State filed a motion to amend the

indictment as follows so that it would track the language of the statute more closely:

THE GRAND JURORS, in and for the County of Denton, State of Texas, duly organized, impaneled, and sworn as such, at the January Term, A.D., 2016, of the District Court of the 362nd Judicial District in and for said county and state, upon their oaths, present in and to said Court that VANDAMME JEANTY, who is hereinafter styled

4 defendant, on or about the 9th day of November, 2015, and anterior to the presentment of this Indictment, in the county and state aforesaid, did then and there, with intent to harm or defraud another, and without the consent of Mary Stella, obtain, possess or use less than five (5) items of identifying information of Mary Stella, to-wit: name and date of birth, or social security number; against the peace and dignity of the State. [Emphasis added.] After a hearing, the trial court granted the State’s motion to amend over Jeanty’s

objection.

2. Applicable Law and Analysis

Jeanty grounds his argument in the language of Article 28.10 of the Texas Code

of Criminal Procedure, which provides, in relevant part, as follows:

(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information. .... (c) An indictment or information may not be amended over the defendant’s objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced. Tex. Code Crim. Proc. Ann. art. 28.10(a), (c). Jeanty asserts that because the original

indictment incorrectly listed “name” and “date of birth” as separate “item[s] of

identifying information”—and therefore did not allege a valid offense under Penal

Code Section 32.51—the State’s amendment of the indictment to properly include

“name and date of birth” as a single “item of identifying information” is the

5 equivalent of charging Jeanty with “an additional or different offense” and prejudiced

his substantial rights. See id. art. 28.10(c). Jeanty’s argument lacks merit.

Jeanty’s argument rests on a faulty premise—that the original indictment did

not state a valid offense. The original indictment alleged that Jeanty “obtain[ed] or

possess[ed]” three “items of identifying information of Mary Stella” without her

consent: her “name, date of birth, or social security number.” Thus, even excluding

the allegations concerning Mary’s name and date of birth, the indictment still alleges

all of the required elements of the charged offense: that Jeanty (1) obtained or

possessed an “item of [Mary’s] identifying information”—her social security number;

(2) without Mary’s consent; (3) with the intent to harm or defraud. See Tex. Penal

Code Ann. § 32.51(b)(1); Sanchez, 536 S.W.3d at 921.

Relying on Cortez, Jeanty contends that a social security number, like a date of

birth, must be paired with a name to constitute an “item of identifying information.”

See 469 S.W.3d at 607 n.13 (Richardson, J., concurring). However, Jeanty’s reliance on

Cortez for this proposition is misplaced. First, the footnote cited by Jeanty is from

Justice Richardson’s concurring opinion and therefore does not constitute binding

precedent. See, e.g., Unkart v. State, 400 S.W.3d 94, 101 (Tex. Crim. App. 2013) (noting

that concurring opinions have only persuasive value); Schultz v. State, 923 S.W.2d 1, 3

n.2 (Tex. Crim. App. 1996) (“As a concurring opinion, Lugo-Lugo [v. State, 650 S.W.2d

72, 87 (Tex. Crim. App. 1983) (op. on reh’g) (Clinton, J. concurring),] is not binding

precedent.”). Second, while the footnote makes clear that, without more, a name

6 would not constitute an “item of identifying information,” it does not explicitly

address whether a social security number, standing alone, would be sufficient. See

Cortez, 469 S.W.3d at 607 n.13 (Richardson, J., concurring). Third, and most

significantly, even if Cortez could be read to support Jeanty’s argument, it is

distinguishable because the court applied a different version of Section 32.51 than is

applicable here. As the majority opinion in that case makes clear, because the offense

at issue was committed in 2010, the court applied the definition of “identifying

information” contained in the then-effective version of Section 32.51. Id. at 599 n.2.

That earlier version of the statute listed “name and social security number, date of

birth, or government-issued identification number” as one category of “identifying

information.” See Act of May 19, 2011, 82d Leg., R.S., ch. 276, § 1, 2011 Tex. Gen.

Laws 881, 881 (emphasis added). However, in 2011, the legislature amended Section

32.51(a)(1) “to move [s]ocial [s]ecurity number . . . into a separate, fifth category,

leaving ‘name and date of birth’ alone in the first category.” Cortez, 469 S.W.3d at 599

n.2. Thus, under the current version of the statute, “social security number” is set

apart as a separate category of “identifying information.” Tex. Penal Code Ann.

§ 32.51(a)(1)(E). Accordingly, even if a social security number, standing alone, did not

constitute an “item of identifying information” under the earlier version of Section

32.51 being construed in Cortez, it clearly does so under the current version applicable

here.

7 Because—contrary to Jeanty’s assertion—the original indictment did, in fact,

state a valid offense, the amended indictment did not charge Jeanty “with an

additional or different offense.”2 See Tex. Code Crim. Proc. Ann. art. 28.10(c); see also

Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991) (holding that for purposes

of Article 28.10(c), “a different offense means a different statutory offense”); State v.

Jarreau, 563 S.W.3d 477, 490 (Tex. App.—San Antonio 2018, pet. ref’d) (holding that

amendment to indictment specifying the manner and means by which the defendant

delivered a dangerous drug in violation of Section 483.042(a) of the Texas Health and

Safety Code “did not charge a different or additional offense”). The amended

indictment did not add a different statutory offense. See Jarreau, 563 S.W.3d at 490.

Rather, both before and after the amendment Jeanty stood charged with the exact

same offense—one count of fraudulently using or possessing identifying information

arising from an incident occurring on November 9, 2015.3

2 Having rejected Jeanty’s contention that the original indictment did not state a valid offense, we need not address whether Article 28.10(c) applies to such situations. Compare Byrum v. State, 762 S.W.2d 685, 690–91 (Tex. App.—Houston [14th Dist.] 1988, no writ) (holding that Article 28.10(c)’s “prohibition against adding an offense or changing the offense [did] not apply . . . because the original information never alleged an offense”), with Flowers v. State, 785 S.W.2d 890, 892, 896 (Tex. App.— El Paso 1990) (disagreeing with Byrum and noting that “zero plus one equals one reflects an addition process to us”), rev’d, 815 S.W.2d 724 (Tex. Crim. App. 1991). 3 Jeanty, citing Jefferson v. State, No. PD-0677-21, 2022 WL 2961846 (Tex. Crim. App. July 27, 2022), argues that the indictment’s amendment was impermissible because “adding a count, even of the same statutory offense as a count already in the indictment, would constitute an additional offense.” However, because the amended indictment did not add an additional count of fraudulently using or possessing

8 Nor did the amendment prejudice Jeanty’s substantial rights. See Tex. Code

Crim. Proc. Ann. art. 28.10(c). In determining whether a defendant’s substantial rights

were prejudiced by an amended indictment, we ask whether the amendment gave the

defendant adequate notice of the allegations or impaired his ability to prepare his

defense. See Flowers, 815 S.W.2d at 729; Hillin v. State, 808 S.W.2d 486, 488–89 (Tex.

Crim. App. 1991); Jarreau, 563 S.W.3d at 490. Here, Jeanty has not argued that the

amendment caused him surprise or affected his ability to prepare a defense,4 nor can

identifying information but merely combined two items of “identifying information” that Jeanty was alleged to have “use[d]” or “possess[ed],” Jefferson is distinguishable. See id. at *3–4. 4 Jeanty argues that the amendment prejudiced his substantial rights because it denied him his constitutional right to be indicted by a grand jury. See Tex. Const. art. I, § 10. However, this is not the proper inquiry when determining whether a defendant’s substantial rights were prejudiced under Article 28.10(c). See Flowers, 815 S.W.2d at 729; Hillin, 808 S.W.2d at 488–89; Jarreau, 563 S.W.3d at 490. In rejecting a similar argument that an amended indictment violated the appellant’s constitutional rights because the grand jury had not reviewed it, one of our sister courts explained: “Article 28.10 is the implementing legislation of the amendment to Tex. Const. art. V, § 12, relating to defects in charging instruments. The constitutional amendment gave the Legislature the right to determine the contents, amendment, sufficiency, and requisites of indictments. Thus, the requisites of indictments now stem from statutory law alone.” Smith v. State, 20 S.W.3d 827, 828 (Tex. App.—Texarkana 2000, pet. dism’d); see also Gray v. State, No. 05-20-00121-CR, 2022 WL 2900970, at *3 (Tex. App.—Dallas July 22, 2022, no pet.) (mem. op., not designated for publication) (clarifying that “error in amending an indictment . . . over appellant’s objection is statutory, not constitutional” (citing Dukes v. State, 239 S.W.3d 444, 447 (Tex. App.— Dallas 2007, pet. ref’d))). Thus, we reject Jeanty’s argument that an amendment that otherwise satisfies the requirements of Article 28.10 is nonetheless invalid because such an amendment violates the defendant’s right to be indicted by a grand jury. Jeanty’s argument proves too much; if we were to adopt his reasoning, virtually all amended indictments in felony cases would be unconstitutional unless they were reviewed and approved by a grand jury. We must decline Jeanty’s invitation to, in

9 we see how it possibly could have. As noted above, the amended indictment alleged

the same offense, concerned the same incident on November 9, 2015, and listed the

same “item[s] of identifying information” as the original. The only differences were

the combination of “name” and “date of birth” into a single “item of identifying

information” and the addition of the verb “use” such that the amended indictment

alleged that Jeanty “obtain[ed], possess[ed] or use[d]” Mary’s identifying information.

We cannot conclude that these minor changes—which were made more than two

years before trial—impaired Jeanty’s ability to prepare a defense. See Jarreau, 563

S.W.3d at 490; cf. Valenti v. State, 49 S.W.3d 594, 598 (Tex. App.—Fort Worth 2001,

no pet.) (disregarding correction to date of offense in indictment, to which

defendant’s attorney objected on the day of trial, because defendant was neither

surprised nor misled to his prejudice in preparing his defense).

Because the amendment to the indictment neither charged Jeanty with “an

additional or different offense” nor prejudiced his “substantial rights,” it was not

improper. See Tex. Code Crim. Proc. Ann. art. 28.10(c). Accordingly, we overrule

Jeanty’s first point.

effect, add an additional, extra-statutory procedural step to the amendment process governed by Article 28.10. Further, to the extent Jeanty asserts a separate constitutional appellate complaint, it has been forfeited because he did not raise a constitutional objection to the amendment in the trial court. See Tex. R. App. P. 33.1(a); see also Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (“It is well settled that almost every right, constitutional and statutory, may be waived by the failure to object.”).

10 B. Points Two and Eight: The Evidence Is Legally Sufficient

In his second and eighth points,5 Jeanty argues that the evidence is legally

insufficient to support his conviction.6 We disagree.

1. Standard of Review

When conducting an evidentiary-sufficiency review, we view all the evidence in

the light most favorable to the verdict to determine whether any rational factfinder

could have found the crime’s essential elements beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d

616, 622 (Tex. Crim. App. 2017). This standard gives full play to the factfinder’s

responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99

S. Ct. at 2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).

The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App.

2021). We may not re-evaluate the evidence’s weight and credibility and substitute our

judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine

5 As noted above, many of Jeanty’s points are interrelated. Where appropriate, we will address such interrelated points together. See, e.g., Phillips v. State, No. 02-16-00049-CR, 2016 WL 6519118, at *2 (Tex. App.—Fort Worth Nov. 3, 2016, no pet.) (mem. op., not designated for publication). 6 In his eighth point, Jeanty actually asserts that the trial court erred by denying Jeanty’s motion for a directed verdict of acquittal. However, such a complaint is treated as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).

11 whether the necessary inferences are reasonable based on the evidence’s cumulative

force when viewed in the light most favorable to the verdict. Braughton v. State, 569

S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex.

Crim. App. 2017) (“The court conducting a sufficiency review must not engage in a

‘divide and conquer’ strategy but must consider the cumulative force of all the

evidence.”). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at

608.

2. Hypothetically Correct Jury Charge

In determining whether the evidence is legally sufficient, we must compare the

evidence produced at trial to “the essential elements of the offense as defined by the

hypothetically correct jury charge.” David v. State, No. PD-0307-21, 2022 WL

1548023, at *3 (Tex. Crim. App. May 11, 2022) (quoting Malik v. State, 953 S.W.2d

234, 240 (Tex. Crim. App. 1997)). “A hypothetically correct jury charge ‘accurately

sets out the law, is authorized by the indictment, does not unnecessarily increase the

State’s burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.’” Id.

The “law” as “authorized by the indictment” includes “the statutory elements of the

offense . . . as modified by the charging instrument.” Curry v. State, 30 S.W.3d 394, 404

(Tex. Crim. App. 2000).

12 In the present case, we must determine which indictment—the original

indictment or the amended one—is the proper charging instrument for purposes of

constructing the hypothetically correct jury charge. See id. Jeanty argues that because

the indictment’s amendment was erroneous, the hypothetically correct jury charge

must be based upon the original indictment. However, having determined that the

indictment was properly amended, we conclude that the amended indictment is the

proper charging instrument upon which to base the hypothetically correct jury charge.

See Trevino v. State, 470 S.W.3d 660, 663 (Tex. App.—Houston [14th Dist.] 2015, pet.

ref’d); cf. Curry, 30 S.W.3d at 404 (concluding that because the indictment’s

amendment was erroneous, the hypothetically correct jury charge must be based on

the original indictment).

3. The Elements of the Offense

As set forth above, the Texas Penal Code provides that “[a] person commits

the offense of fraudulent use of identifying information if he: (1) obtains, possesses,

transfers, or uses an item of identifying information of another person; (2) without the

other person’s consent; and (3) with the intent to harm or defraud.” Sanchez, 536

S.W.3d at 921 (citing Tex. Penal Code Ann. § 32.51(b)(1)). The amended indictment

in this case alleged that “on or about the 9th day of November, 2015,” Jeanty “did

then and there, with intent to harm or defraud another, and without the consent of

Mary Stella, obtain, possess or use less than five (5) items of identifying information

of Mary Stella, to-wit: name and date of birth, or social security number.” Thus, in

13 order to convict Jeanty, the jury had to find beyond a reasonable doubt that he

“obtain[ed], possess[ed] or use[d]” Mary’s “name and date of birth” or “social security

number” without her consent and “with the intent to harm or defraud another.” See

Curry, 30 S.W.3d at 404.

4. The State’s Evidence

During the guilt–innocence phase of trial, the State called six witnesses and

offered numerous exhibits, including surveillance camera footage and Nebraska

Furniture Mart’s pertinent business records, including receipts and credit account

records.

The victim Mary, an attorney who has resided in Florida her entire life, testified

that she first encountered Jeanty in 2012 while representing Bank of America in a civil

lawsuit filed by Carline Merisier. Because Jeanty featured prominently in the lawsuit,

Mary knew who he was, and one day she noticed him “lurking” and “following” her

as she walked from her law office to the courthouse. Mary testified that she was not

friends with Jeanty or Merisier and never gave them her personal information or

authorized them to use it.

On November 8, 2015, a credit account in the name of “Mary Pascal,” Mary’s

maiden name, was opened online through Nebraska Furniture Mart’s website. The

account listed Mary’s address as 5014 Oregon Court, Grand Prairie, Texas (the Grand

Prairie address), an address Mary had never visited. Indeed, Mary testified that she had

14 never been to Texas prior to this case. The account reflected Mary’s employer as

Xtreme Electronics Systems, a company she had never worked for.

To open an account on Nebraska Furniture Mart’s website, an applicant must

enter her name, social security number, address, date of birth, driver’s license number,

phone number, place of employment, and income information. Both the date of birth

and social security number on the account matched Mary’s. Although the account

included her identifying information, Mary testified that she did not open the account

and, in fact, had never even heard of Nebraska Furniture Mart prior to this case.

Casey McGregor, a loss-prevention assistant manager at Nebraska Furniture

Mart, testified that because Nebraska Furniture Mart is a frequent fraud target, he has

trained employees to notice signs of fraud. He explained that one such sign is when a

customer purchases multiple high-end electronics on a newly opened account.

Dan Harrison, who worked at Nebraska Furniture Mart as a sales agent,

testified that on November 9, 2015, he was working in the small electronics section

where vacuum cleaners are sold. He sold a Dyson vacuum to a man who used the

“Mary Pascal” account for the purchase.7 The man signed the receipt, which

prominently displayed the name “Mary Pascal” and the Grand Prairie address at the

top.

7 While Harrison acknowledged that he did not recall the particulars of this transaction, he explained that in order for a customer to purchase items on a store credit account, the customer would need to provide the sales agent—in this case Harrison—a name or phone number associated with the account.

15 The State offered both the receipt and surveillance video of the transaction into

evidence. The time stamps of the video and the receipt match up, and the video

shows a man resembling Jeanty walking out of the store with the vacuum a few

minutes after the transaction. The vacuum was later recovered from Jeanty’s vehicle

after he was arrested.

That same day, two televisions were also purchased on the “Mary Pascal”

account. Because, as noted above, the purchase of multiple high-end electronics on a

newly opened account is a fraud indicator, McGregor was notified and took steps to

verify the legitimacy of the account. McGregor called the phone number associated

with the “Mary Pascal” account; a man answered; McGregor asked for Mary; and the

man passed the phone to a woman. McGregor then researched the social security

number associated with the account and determined that while the number belonged

to someone named Mary Pascal, she lived in Florida, not Texas. McGregor then

spoke with the actual Mary on the phone, which confirmed his suspicion that the

“Mary Pascal” account was fraudulent. As a result, McGregor began coordinating

with security staff to apprehend Jeanty in the customer pick-up area.

Jeanty and Merisier drove up to the customer pick-up area in a white Ford

Expedition to collect the televisions. The vehicle did not have a front license plate,

and in place of a back license plate was a piece of paper with numbers and letters

written in marker. While Jeanty and Merisier waited in the customer pick-up area,

Merisier got out of the vehicle and began walking aimlessly toward a busy intersection.

16 McGregor, posing as a worker in the customer pick-up department, loaded the

televisions onto a flat and walked them to Jeanty’s vehicle. He spoke with Jeanty, who

confirmed that he was there to pick up the televisions. McGregor could see the

vacuum from the earlier transaction in Jeanty’s vehicle. After Jeanty signed for the

televisions using the name “Pierre Pascal,” McGregor detained him.

After being taken to the store’s loss-prevention offices in handcuffs, Jeanty was

not cooperative and would not give his name. Jeanty told McGregor that he had taken

a laxative and needed to use the restroom. McGregor allowed him to do so but

instructed him not to use his phone. While supervising Jeanty in the restroom,

another loss-prevention officer named Brandon Barnes observed Jeanty texting while

in the bathroom stall and directed him to stop several times. After Jeanty repeatedly

ignored Barnes’s instructions, Barnes entered the stall to stop Jeanty from using his

phone. A scuffle ensued, and Jeanty’s phone landed in the toilet. After Jeanty

continued to resist and Barnes threatened to use his pepper spray, Jeanty exclaimed,

“Go ahead, I’m ready to die.” Barnes eventually escorted Jeanty back to the detention

room and observed that Jeanty had not actually urinated or defecated while in the

restroom.

Jeanty later told McGregor that he had not taken his medication, and an

ambulance was called. A paramedic attempted to assist Jeanty, but Jeanty refused to

answer any questions. Because Jeanty’s vital signs were normal and he showed no

signs of a medical emergency, the paramedic left.

17 Loss-prevention officers eventually tracked down Merisier and brought her to

the detention room as well. While in the detention room with Merisier, McGregor

called the phone number listed on the fake “Mary Pascal” account, and the phone in

Merisier’s pocket rang.

McGregor called the police, and Lieutenant Jason Stevens responded. Stevens

spoke with Merisier and Jeanty, who were both uncooperative. Although Jeanty

refused to give his name, Stevens was able to verify his identity by communicating

with Mary, the victim. Mary sent Stevens Jeanty’s mugshot, and Stevens was able to

identify the man in custody as Jeanty based on the photograph.

Stevens’s search of Jeanty’s vehicle revealed not only the Dyson vacuum but

also a bag containing mail. Two of the letters—one from State Farm Bank and one

from Deluxe—were addressed to “Mary Pascal” at the Grand Prairie address. A third

letter also reflected the Grand Prairie address and listed the addressee as “Frantzi

Jeanty.”

5. Analysis

Jeanty claims that the evidence is insufficient to prove that he fraudulently

obtained, possessed, or used Mary’s identifying information,8 see Tex. Penal Code

Ann. § 32.51(b)(1), because there is no evidence that Jeanty was the person who

8 Because Jeanty does not challenge the consent or intent elements, we will limit our discussion accordingly. See Tex. R. App. P. 47.1 (indicating that an appellate court’s opinion should be “as brief as practicable”).

18 created the fraudulent “Mary Pascal” account or that he was in actual physical

possession of Mary’s identifying information. We disagree.

Viewed in the light most favorable to the verdict, the evidence—though largely

circumstantial—is sufficient to support Jeanty’s conviction. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622; see also David, 2022 WL 1548023, at

*3 (“Direct evidence and circumstantial evidence are equally probative, and

circumstantial evidence alone may be sufficient to uphold a conviction.” (first citing

Jackson, 443 U.S. at 324–25, 99 S. Ct. at 2792; and then citing Winfrey v. State, 393

S.W.3d 763, 771 (Tex. Crim. App. 2013))). At trial, the State’s evidence showed the

following:

• Jeanty knew Mary from her representation of Bank of America in a civil lawsuit filed by Merisier, Jeanty’s alleged partner in crime;

• On November 8, 2015, a fraudulent Nebraska Furniture Mart credit account was opened using Mary’s identifying information, including her name, date of birth, and social security number—all of which were required to set up an account;

• The next day, November 9, 2015, Jeanty attempted to purchase a vacuum and two televisions on the fraudulent account; these transactions are verified by the store’s business records and surveillance footage;

• At the time he attempted to pick up the televisions, Jeanty’s vehicle had no front license plate and had a piece of paper with numbers and letters written in marker in lieu of a rear license plate;

• Jeanty signed for the televisions under the name “Pierre Pascal”;

• Once detained, Jeanty was uncooperative; refused to provide his name; misled loss-prevention officers about needing to use the restroom and to

19 take medication; and exclaimed that he was “ready to die” after one of the loss-prevention officers threatened to use pepper spray if Jeanty continued to resist;

• When, after detaining Jeanty and Merisier, McGregor called the phone number listed on the fraudulent account, Merisier’s phone rang;

• Lieutenant Stevens was able to identify Jeanty as the man apprehended in the store after receiving a copy of his mugshot from Mary, the victim; and

• When searching Jeanty’s vehicle, police found not only the vacuum Jeanty had attempted to purchase on the fraudulent account but also two letters addressed to “Mary Pascal” at the Grand Prairie address. Although there is no “smoking gun” evidence that Jeanty created the

fraudulent account or physically possessed Mary’s identifying information, given the

overwhelming circumstantial evidence, a reasonable jury could determine that Jeanty

obtained, possessed, or used Mary’s identifying information. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622. First, the lack of evidence that

Jeanty physically possessed the information is unremarkable—and certainly not

exculpatory—considering that the information used to set up the fraudulent account

online may never have existed in physical form. See Cortez, 469 S.W.3d at 601

(recognizing “the elusive nature of identity theft in the digital age, which is not always

tied to the possession of any tangible document” and pointing out that Section 32.51’s

legislative history makes clear that its focus is to target the “fraudulent use or

possession of . . . identifying information . . . rather than . . . the use or possession of

particular documents”). Moreover, because Jeanty knew Mary from a previous lawsuit

20 and attempted to purchase multiple items on the fraudulent account the day after it

was opened, a reasonable juror could infer that Jeanty opened the account using

Mary’s identifying information.9 However, such an inference is not even necessary to

uphold Jeanty’s conviction. Regardless of whether Jeanty was the one who set up the

account online, the evidence clearly shows, at a minimum, that Jeanty, in effect, used

Mary’s information without her consent when he attempted to purchase multiple

items on the fraudulent account. Cf. Ogunlana, 2012 WL 5873543, at *3 (concluding

that even though the State could not definitively prove that appellant had supplied the

victim’s information to Dell in connection with an online order, “a reasonable jury

could determine that [appellant] ‘used’ [the victim’s] information without his consent

when she ordered a computer, did not pay for it, and did not attempt to correct Dell’s

billing error”). Further, Jeanty’s other suspicious behavior at the store—including

using the name “Pierre Pascal” on the pick-up receipt for the televisions, using a fake

paper license plate, and refusing to cooperate with store personnel or the police after

being detained—supports the jury’s determination that Jeanty acted with fraudulent

intent.

Though evidence that Jeanty “use[d]” Mary’s identifying information would be 9

sufficient to support his conviction, see Ogunlana v. State, No. 01-11-00573-CR, 2012 WL 5873543, at *3 (Tex. App.—Houston [1st Dist.] Nov. 21, 2012, no pet.) (mem. op., not designated for publication), in order to have used Mary’s identifying information to set up the account, Jeanty logically would have also needed to possess it, and such possession would, in turn, necessitate his having obtained the information in the first place.

21 In sum, a rational factfinder, having considered the evidence presented at trial,

could have found beyond a reasonable doubt that Jeanty, with the intent to harm or

defraud, “obtain[ed], possesse[d], . . . or use[d]” Mary’s identifying information

without her consent. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Tex. Penal

Code Ann. § 32.51(b)(1). Accordingly, we overrule Jeanty’s second and eighth points.

C. Points Three, Four, Five, and Fourteen: The Jury Charge Was Proper In his third, fourth, fifth, and fourteenth points, Jeanty argues that the jury

charge was erroneous because (1) it improperly tracked the amended indictment

rather than the original indictment; (2) it failed to set forth all of the essential elements

of the offense; (3) it did not require a unanimous jury verdict; and (4) it did not define

the phrase “element of the offense.” All of Jeanty’s complaints about the jury charge

are meritless.

We must review “all alleged jury-charge error . . . regardless of preservation in

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In

reviewing a jury charge, we first determine whether error occurred; if not, our analysis

ends. Id. However, if the charge is erroneous, then we must decide whether the

appellant was harmed. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013); see

Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). The standard of review to

be applied in assessing harm depends on whether the defendant preserved the error.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). If a

22 defendant timely objects to alleged jury-charge error, the record need only show

“some harm” to obtain relief. Id. But in the absence of a timely objection, the record

must show “egregious harm.” Id.

2. The Jury Charge Properly Tracked the Amended Indictment

In his third point, Jeanty argues that the jury charge was erroneous because it

incorrectly tracked the amended indictment. This argument is premised on Jeanty’s

previously addressed contention that the trial court erred by granting the State’s

motion to amend the indictment.10 Having determined that the indictment’s

amendment was proper, we reject Jeanty’s argument that the jury charge should have

tracked the original—not the amended—indictment.

We overrule Jeanty’s third point.

3. The Jury Charge Set Forth the Essential Elements of the Offense

In his fourth point, Jeanty asserts that the jury charge failed to set forth all of

the elements of the offense because it improperly listed “social security number” as a

separate “item of identifying information.” Jeanty, relying on Cortez, 469 S.W.3d at

600, 607 n.13, contends that a social security number must be paired with a name to

constitute an “item of identifying information.” See Tex. Penal Code Ann.

§ 32.51(a)(1). However, as detailed above,11 Cortez is distinguishable because it

involved an earlier version of Section 32.51(a)(1). See 469 S.W.3d at 599 n.2. As the

10 See supra Section II.A.1–2. 11 See supra Section II.A.2.

23 Cortez court itself recognized, the current version of the statute, which we must apply

here, lists “social security number”—untethered from “name”—as a separate “item of

identifying information.” Id. Thus, the jury charge’s listing of “social security number”

as a separate “item of identifying information” aligns with the current version of

Section 32.51(a)(1) and is not erroneous. See Tex. Penal Code Ann. § 32.51(a)(1).

We overrule Jeanty’s fourth point.

4. There Was No Jury Unanimity Error in the Jury Charge

In his fifth point, Jeanty argues that the jury charge was erroneous because it

allowed for the possibility of a conviction on a non-unanimous verdict. This argument

lacks merit.

“Texas law requires that a jury reach a unanimous verdict about the specific

crime that the defendant committed.” Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim.

App. 2011) (citing Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008)). This

means that a jury must “agree upon a single and discrete incident that would

constitute the commission of the offense alleged.” Id. (quoting Stuhler v. State,

218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). However, this does not mean that the

jury must unanimously find that the defendant committed the crime in one specific

way or even with one specific act. Landrian, 268 S.W.3d at 535 (citing Jefferson v. State,

189 S.W.3d 305, 312 (Tex. Crim. App. 2006)).

There are several ways in which non-unanimity issues arise. The Texas Court of

Criminal Appeals has recognized three situations in which non-unanimity may result

24 when the jury charge fails to properly instruct the jury. Cosio, 353 S.W.3d at 771.

“First, non-unanimity may occur when the State presents evidence demonstrating the

repetition of the same criminal conduct, but the actual results of the conduct

differed.” Id. at 771–72 (citing Ngo, 175 S.W.3d at 747). “Second, non-unanimity may

occur when the State charges one offense and presents evidence that the defendant

committed the charged offense on multiple but separate occasions.” Id. at 772.

“[T]hird and finally, non-unanimity may occur when the State charges one offense

and presents evidence of an offense, committed at a different time, that violated a

different provision of the same criminal statute.” Id. (citing Ngo, 175 S.W.3d at 747–

48).

Jeanty contends that his case falls within the third scenario. Relying on State v.

Donaldson, 557 S.W.3d 33 (Tex. App.—Austin 2017, no pet.), in which the Third

Court of Appeals concluded that for double-jeopardy purposes the “allowable unit of

prosecution” under Section 32.51 is “each separate item of identifying information,”

id. at 46, Jeanty argues that because he was charged with “obtain[ing], possess[ing], or

us[ing]” two categories of Mary’s identifying information—her “name and date of

birth” and her “social security number”—he was actually charged with two separate

offenses. Thus, Jeanty reasons, the charge allowed for the possibility of a conviction

on a non-unanimous verdict because it instructed the jury to find Jeanty guilty if it

found beyond a reasonable doubt that he “obtained or possessed or used” Mary’s

“name and date of birth, or [s]ocial [s]ecurity [n]umber.” [Emphasis added.] According

25 to Jeanty, because the charge did not require the jury to differentiate between the two

separate statutory offenses and because some jurors may have found that Jeanty only

possessed Mary’s name and date of birth and others may have found that he only

possessed her social security number, the charge created a non-unanimity issue.12

Jeanty’s argument rests on a flawed foundation. Contrary to Jeanty’s claim, he

was charged with a single offense, not two. Notwithstanding our sister court’s holding

in Donaldson, which we decline to extend beyond the double-jeopardy context, it is

clear that Jeanty’s act of “obtain[ing], possess[ing], . . . or us[ing]” Mary’s “name and

date of birth” and “social security number” constitutes “a single and discrete

incident”—and thus a single offense—for purposes of jury unanimity. See Cosio, 353

S.W.3d at 771. The record shows that Mary’s name, date of birth, and social security

number were needed to set up the fraudulent account. Thus, purchasing or attempting

to purchase items on the account would necessarily involve the use of both items of

identifying information alleged in the indictment. The State did not allege that Jeanty

obtained, possessed, or used Mary’s name and date of birth on Day X and then

obtained, possessed, or used her social security number on Day Y. See id. at 772

(“[N]on-unanimity may occur when the State charges one offense and presents

evidence of an offense, committed at a different time, that violated a different provision of

12 Jeanty also argues that the charge was erroneous because it “counted [Mary’s] social security number alone as an item of ‘identifying information.’” However, as discussed above, “social security number” is a proper “item of identifying information” under the current version of Section 32.51(a)(1) applicable to this case. See supra Sections II.A.2., II.C.3. Thus, we need not address this argument again here.

26 the same criminal statute.” (emphasis added)). Rather, Jeanty was charged with using

both together in a “single and discrete incident.” See id. at 771. Because both items of

identifying information were part and parcel of the same criminal incident, the jury

charge did not allow for the possibility of a conviction on a non-unanimous verdict.

We overrule Jeanty’s fifth point.

5. The Omission of the Definition of the Phrase “Element of the Offense” Did Not Render the Jury Charge Erroneous In his fourteenth point, Jeanty argues that the jury charge was erroneous

because it did not include the statutory definition of the phrase “element of the

offense.” This argument is meritless.

The trial court is required to give the jury a written charge that, among other

things, “set[s] forth the law applicable to the case.” Tex. Code Crim. Proc. Ann. art.

36.14. The “law applicable to the case” includes “statutory definitions that affect the

meaning of the elements of the offense.” Ouellette v. State, 353 S.W.3d 868, 870 (Tex.

Crim. App. 2011); see Watson v. State, 548 S.W.2d 676, 679 n.3 (Tex. Crim. App. 1977)

(“The trial court should always include the statutory definitions in its jury instructions

where applicable.”). Trial courts have “broad discretion” in submitting proper

definitions and explanatory phrases to aid the jury. Nava v. State, 379 S.W.3d 396, 420

(Tex. App.—Houston [14th Dist.] 2012), aff’d, 415 S.W.3d 289 (Tex. Crim. App.

2013); Deener v. State, 214 S.W.3d 522, 529 (Tex. App.—Dallas 2006, pet. ref’d); see

Shipp v. State, 331 S.W.3d 433, 444 (Tex. Crim. App. 2011) (Meyers, J., concurring).

27 Nonetheless, because the jury is the ultimate trier of fact, the charge may not advise

the jury on the specific application of the facts to the law such that it comments on

the weight of the evidence. Watts v. State, 99 S.W.3d 604, 609–13 (Tex. Crim. App.

2003).

Even if we were to assume—without deciding—that the trial court erred by

failing to include the statutory definition of “elements of the offense” in the jury

charge, such error would not warrant reversal. Because Jeanty did not object to the

jury charge’s lack of a definition of “element of the offense,” the error is only

reversible if the record shows “egregious harm.” See Almanza, 686 S.W.2d at 171. “An

egregious harm determination must be based on a finding of actual rather than

theoretical harm.” Cosio, 353 S.W.3d at 777. Errors that result in egregious harm are

those “that affect the very basis of the case, deprive the defendant of a valuable right,

vitally affect the defensive theory, or make a case for conviction clearly and

significantly more persuasive.” Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App.

2011) (citing Almanza, 686 S.W.2d at 172).

Here, the record does not show egregious harm. While the jury charge did not

define “elements of the offense,” it set out all of the elements of fraudulent use of

identifying information, defined terms within those elements, and applied those

elements to the facts.13 Moreover, during voir dire, the State explained to the jurors

The application paragraph clearly explained the elements that the jury needed 13

to find in order to convict Jeanty:

28 that it carried the burden to prove the elements, explained the elements, and even

listed the elements on a board. Jeanty’s attorney also explained to the jurors that the

State was required to prove all of the elements beyond a reasonable doubt and asked

them if they understood that all of the elements needed to be proven. Both sides

further discussed the elements and the State’s burden to prove them beyond a

reasonable doubt during closing arguments. Thus, the jury was well-schooled

regarding the elements that the State needed to prove, and there is nothing in the

record to suggest that they were confused by the lack of a definition of the phrase

“elements of the offense” in the jury charge. Accordingly, the record does not show

actual harm. See Cosio, 353 S.W.3d at 777 (clarifying that to be “egregious,” harm must

be actual, not merely theoretical).

We overrule Jeanty’s fourteenth point.

D. Points Six and Seven: The Evidence Showed “Mary Stella” and “Mary Pascal” Were the Same Person In his sixth and seventh points, Jeanty seeks the reversal of his conviction on

the basis that the indictment alleged that the victim’s name was “Mary Stella” but the

Now, if you find from the evidence beyond a reasonable doubt that on or about the 9th day of November, 2015, in Denton County, Texas, the defendant, Vandamme Jeanty, did then and there, either acting alone or as a party with Carline Merisier, with the intent to harm or defraud another, and without the consent of Mary Stella, obtained or possessed or used less than five items of identifying information of Mary Stella, to wit: name and date of birth, or Social Security Number, then you will find the Defendant guilty. If you do not so believe, or if you have a reasonable doubt thereof, you will find the Defendant not guilty.

29 evidence at trial showed that the name on the fraudulent account was “Mary Pascal.”

Jeanty argues that this variance prejudiced his substantial rights and rendered the

State’s evidence legally insufficient to support his conviction. These arguments are

meritless.

Contrary to Jeanty’s assertions in the trial court and on appeal, the indictment

could contain either of the victim’s known names. Indeed, Article 21.07 of the Texas

Code of Criminal Procedure expressly provides that “[w]hen a person is known by

two or more names, it shall be sufficient to state either name” in an indictment. Tex.

Code Crim. Proc. Ann. art. 21.07.

Moreover, the evidence at trial made clear that “Mary Stella” and “Mary Pascal”

were the same person. For example, as soon as the State called the victim as a witness,

the following exchange occurred:

Q Can you please introduce yourself?

A Yes. My name is Mary Stella.

Q Okay. What was your name before you got married?

A Mary Pascal.

Q So if we’re talking about someone by the name of Mary Pascal or Mary Stella in this particular case, we’re talking about you; is that correct? A That is correct.

Mary further testified that she was married in 2014 and that the fraudulent account

reflected her maiden name. She pointed out that while representing Bank of America

30 in its civil lawsuit against Merisier in 2012, she was not yet married, and thus her name

was still “Mary Pascal” when she first encountered Jeanty. This would explain why the

fraudulent account reflected her maiden name.

Because there was evidence that Mary was known by the name alleged in the

indictment, Jeanty’s legal sufficiency argument fails. See Blankenship v. State, 785 S.W.2d

158, 159 (Tex. Crim. App. 1990). “If there is evidence that the person was known by

the name alleged in the indictment, then the issue is raised and is properly left for the

jury to determine.” Id. at 160. Here, there was ample evidence that the victim was

known as both “Mary Pascal” and “Mary Stella.” Accordingly, the evidence was

sufficient to support the allegation in the indictment. See id.

Jeanty’s argument that the variance between the name alleged in the indictment

and the name on the fraudulent account prejudiced his substantial rights is similarly

unpersuasive. To prejudice a defendant’s substantial rights, an indictment must fail to

inform him of the charges sufficiently to allow him to prepare an adequate defense or

subject him to the risk of being prosecuted later for the same offense. Gollihar v. State,

46 S.W.3d 243, 248–49 (Tex. Crim. App. 2001). There is no evidence of such

prejudice in this case.

The record belies Jeanty’s claim that the variance impaired his ability to prepare

a defense. The State’s discovery, which Jeanty’s counsel confirmed she received prior

to trial, clearly showed that “Mary Pascal” was the name reflected on the fraudulent

account and contained an email between Mary and Lieutenant Stevens in which Mary

31 stated that her name was “Mary Pascal Stella” and which she signed “Mary Stella.”

Moreover, Jeanty never sought a continuance on the basis of unfair surprise regarding

the victim’s name. Indeed, there is no indication in the record that Jeanty did not

know whose identifying information he was accused of fraudulently using or

possessing or that he was misled by the allegation in the indictment that the victim’s

name was “Mary Stella” or surprised by the proof at trial. See id.

Nor has Jeanty shown that there is a risk that he will be prosecuted later for the

same crime. See id. In his brief, Jeanty argues that he is at risk of being reprosecuted

for the same offense with a new indictment alleging “Mary Pascal” as the victim. But

because the record clearly shows that “Mary Stella” and “Mary Pascal” are the same

person, no such risk is presented. See Salazar v. State, No. 14-99-01136-CR, 2001 WL

893809, at *5 (Tex. App.—Houston [14th Dist.] Aug. 9, 2001, no pet.) (not

designated for publication) (concluding that there was no risk of reprosecution where

the indictment alleged that appellant sexually assaulted “Esperanza Quinonez,” but

the proof at trial showed that the victim’s name was really “Esperanza Quinonez

Alvarado”); see also United States v. Apodaca, 843 F.2d 421, 430 n.3 (10th Cir. 1988)

(stating entire record, not just indictment, may be consulted in protecting against

double jeopardy).

32 We also reject Jeanty’s argument that the variance was material because the

victim’s name is a statutory element of the offense.14 As noted above, fraudulent use

or possession of identifying information—the offense of which Jeanty was

convicted—has three elements: that the defendant “(1) obtain[ed], possesse[d],

transfer[red], or use[d] an item of identifying information of another person;

(2) without the other person’s consent; and (3) with the intent to harm or defraud.”

Sanchez, 536 S.W.3d at 921 (citing Tex. Penal Code Ann. § 32.51(b)(1)). Thus, the

victim’s particular name is not an element of the offense. The indictment properly

identified the “other person” whose “identifying information” Jeanty was accused of

“obtain[ing], possess[ing] or us[ing]” as “Mary Stella.” See Tex. Code Crim. Proc. Ann.

art. 21.07; Blankenship, 785 S.W.2d at 159 (“When a person is known by two or more

14 In “sub-points” to his sixth and seventh points, Jeanty asserts that the victim’s date of birth and social security number also should have been included in the indictment because they too are statutory elements of the charged offense. However, while Jeanty cites cases for the general proposition that an indictment must include a description of a “statutory element that is the gravamen of the offense,” see, e.g., Byrd v. State, 336 S.W.3d 242, 257 (Tex. Crim. App. 2011), he cites no caselaw requiring the victim’s particular social security number and date of birth to be included in an indictment for fraudulent use or possession of identifying information, and we are unpersuaded by Jeanty’s reasoning. Like the victim’s particular name, her specific social security number and date of birth are not elements of the offense that must be included in the indictment. Further, from a practical standpoint, we believe that the best practice is to avoid putting the victim’s sensitive data in a document of public record such as an indictment. Cf. Bell v. State, 155 S.W.3d 635, 639 n.3 (Tex. App.— Texarkana 2005, no pet.) (noting that because the pre-sentence investigation report often contains confidential information, “the better practice is to not admit the [report] into evidence.”).

33 names, Art[icle] 21.07 allows the State to allege either name in the indictment.”). This

was all that was required.

We overrule Jeanty’s sixth and seventh points.

E. Points Nine and Ten: The Admission of State’s Exhibits Four, Five, and Six In his ninth and tenth points, Jeanty argues that the trial court erred by

admitting State’s Exhibits Four, Five, and Six because they were hearsay, were not

business records, and were not authenticated. Jeanty’s arguments regarding the

admission of these exhibits are unpreserved, meritless, or both.

1. Standard of Review We review a trial court’s decision to admit or exclude evidence under an abuse

of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003);

Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We will not reverse a

trial court’s decision to admit or exclude evidence unless the record shows a clear

abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only

when the trial court’s decision was so clearly wrong as to lie outside that zone within

which reasonable persons might disagree. Id.

Even if a trial court improperly admits evidence, such an error generally does

not warrant reversal unless it affects an appellant’s substantial rights. See Tex. R. App.

P. 44.2(b). “A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict.” Coble v. State, 330

S.W.3d 253, 280 (Tex. Crim. App. 2010). Improperly admitted evidence that did not

34 influence the jury or had but a slight effect on the verdict is harmless. Id. Further, a

trial court’s error in improperly admitting evidence may be rendered harmless if other

evidence that proves the same facts as the inadmissible evidence is admitted without

objection. See Valle v. State, 109 S.W.3d 500, 509–10 (Tex. Crim. App. 2003).

2. Exhibit Four

State’s Exhibit Four is a fifteen-page packet containing documents that are

automatically generated during a Nebraska Furniture Mart fraud investigation,

including information about the fraudulent account, when the account was used,

receipts of transactions involving the account, and screenshots of the store’s website

that was used to open the account. On appeal, Jeanty asserts that the trial court erred

by admitting Exhibit Four because it is hearsay, the State did not lay the proper

predicate under the business records exception, and it suffers from a complete lack of

authentication. The State maintains that Jeanty failed to preserve his complaint about

the admission of Exhibit Four for review. We will address this preservation issue

before considering the merits of Jeanty’s complaint.

To preserve a complaint for appellate review, the record must show that a

specific and timely objection was made to the trial judge and that the judge ruled on

the objection. Tex. R. App. P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim.

App. 2009); Smith v. State, 256 S.W.3d 341, 343 (Tex. App.—San Antonio 2007, no

pet.) (mem. op.). “The purpose of requiring a specific objection in the trial court is

twofold: (1) to inform the trial judge of the basis of the objection and give him the

35 opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to

the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). To

satisfy this specificity requirement, “[t]he complaining party must have informed the

trial judge what was wanted and why the party was entitled to it.” Lovill, 319 S.W.3d at

691. An issue is not preserved “if the legal basis of the complaint raised on appeal

varies from the complaint made at trial.” Id. at 691–92; see also Wilson v. State, 71

S.W.3d 346, 349 (Tex. Crim. App. 2002) (admonishing that for error to be preserved,

the appellant’s “point of error on appeal must comport with the objection made at

trial”).

Here, Jeanty filed a pre-trial motion to suppress in which he complained about

his arrest and requested the suppression of any statements made or items seized in

connection therewith. While the motion contains a boilerplate catch-all request for the

suppression of “[a]ny other matters that the Court finds should be suppressed upon

hearing of this motion,” it does not specifically reference Nebraska Furniture Mart’s

records or employees.

At the start of trial, the trial court held a hearing on Jeanty’s motion to

suppress. At the hearing, Jeanty specifically objected to the admission of various

pieces of evidence, including videos, the ringing of Merisier’s phone in the detention

room, and the letters found in Jeanty’s vehicle. Jeanty did not object when the State

offered Exhibit Four into evidence at the hearing on the motion to suppress or at

36 trial. Rather, the only potential objection Jeanty raised to Exhibit Four is in the

following statement near the conclusion of the suppression hearing:

Also in terms of Mr. McGregor, Mr. McGregor does not have any personal knowledge and actually did not have any job-related roles related to the application for the online application for the credit in Ms. Pascal’s name. And so I believe any testimony from Mr. [McGregor] should be inadmissible due to lack of personal knowledge regarding the application. He also has lack of personal knowledge regarding the transaction for the vacuum cleaner, as well as the two televisions. He was not involved at all. He was the loss prevention manager, and as such, he does not have the -- although the State is trying to show that he’s the custodian of records, I believe he is not the custodian of records for these applications and [fifteen]-page packet. He has -- he was not involved with preparing any of this information, Your Honor. Although Jeanty does not mention Exhibit Four by name, it seems evident from the

context that his allusion to “these applications and [fifteen]-page packet” is a

reference to Exhibit Four. The fact that the State subsequently argued for the

admissibility of Exhibit Four at the close of the suppression hearing supports this

interpretation.

Even if we assume that the above-quoted statement from the suppression

hearing constitutes an objection to Exhibit Four’s admission, the only grounds stated

for the objection are that McGregor was not the custodian of the records and did not

prepare the information contained therein. Thus, we will limit our analysis of Exhibit

Four’s admissibility to these grounds; none of Jeanty’s other arguments have been

37 preserved. See Tex. R. App. P. 33.1(a); Lovill, 319 S.W.3d at 691–92; Wilson, 71 S.W.3d

at 349.

McGregor was not required to be either the custodian or the creator of the

information contained in Exhibit Four in order to serve as the sponsoring witness for

its admission as a business record. See Tex. R. Evid. 803(6)(D); Mitchell v. State, 750

S.W.2d 378, 379 (Tex. App.—Fort Worth 1988, pet. ref’d); see also Haq v. State, 445

S.W.3d 330, 335 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (holding that “[t]he

facts that [the sponsoring witness] was not an . . . employee at the time of trial and

that he was not [the store’s] records custodian” did not affect the admissibility of a

receipt admitted as a business record); Huff v. State, 897 S.W.2d 829, 839 (Tex. App.—

Dallas 1995, pet. ref’d) (stating that sponsoring witness does not have to be employee

of company keeping record as long as he has personal knowledge of mode of

preparing record). “[A] qualified witness need not have personal knowledge as to the

contents of the records but rather he need only have personal knowledge of the mode

of preparation of the records.” Mitchell, 750 S.W.2d at 379. McGregor testified that he

was “aware of how all of th[e] information [contained in Exhibit Four] is generated”

and that he actually put together the packet that was ultimately admitted as State’s

Exhibit Four. Thus, he was a qualified witness. See id.

We overrule Jeanty’s ninth point.

38 3. Exhibits Five and Six State’s Exhibit Five is the receipt for the televisions; State’s Exhibit Six is the

receipt for the vacuum cleaner. Jeanty argues that the trial court erred in admitting

these receipts because they are hearsay and lack proper authentication. However,

because the information contained in these receipts was properly admitted elsewhere,

even if we were to assume—without deciding—that the admission of these receipts

was improper, such error would not warrant reversal. 15 See, e.g., Matz v. State, 21

S.W.3d 911, 912 (Tex. App.—Fort Worth 2000, pet. ref’d) (“It is well-established that

the improper admission of evidence does not constitute reversible error if the same

facts are proved by other properly admitted evidence.” (first citing Brooks v. State, 990

S.W.2d 278, 287 (Tex. Crim. App. 1999); and then citing Couchman v. State, 3 S.W.3d

155, 160 (Tex. App.—Fort Worth 1999, pet. ref’d))). We have already ruled that the

trial court properly admitted State’s Exhibit Four,16 which contained a copy of State’s

Exhibit Six. Moreover, Jeanty does not argue that the trial court erred by admitting

15 While Jeanty objected to Exhibit Six at trial, he did not object to the admission of Exhibit Five. Because Jeanty’s motion to suppress did not directly address the admission of these receipts, it would appear that Jeanty failed to preserve error regarding the admission of Exhibit Five. Because we overrule Jeanty’s argument concerning Exhibit Five’s admission on the merits, we need not address this preservation issue. See, e.g., Brumit v. State, 206 S.W.3d 639, 644–45 (Tex. Crim. App. 2006) (expressly declining to decide whether an objection was required to preserve error on an issue because it could be overruled on the merits); Dawson v. State, No. 14- 95-01091-CR, 1998 WL 119675, at *1 n.4 (Tex. App.—Houston [14th Dist.] Mar. 19, 1998, pet. ref’d) (not designated for publication) (“Because we overrule this point of error on the merits, we do not address whether error was preserved.”). 16 See supra Section II.E.2.

39 State’s Exhibit Nineteen, which—like Exhibit Five—is a receipt for the purchase of

the televisions. Exhibit Nineteen is the customer pick-up receipt and contains

essentially the same information as Exhibit Five.17 Thus, the admission of Exhibits

Five and Six was not reversible error. See Matz, 21 S.W.3d at 912.

We overrule Jeanty’s tenth point.

F. Point Eleven: The Phone Ring Was Admissible

In his eleventh point, Jeanty argues that the trial court erred by admitting

evidence that Merisier’s phone rang when McGregor called the number listed on the

fraudulent account because the evidence was hearsay and not authenticated. Jeanty’s

argument is meritless.

1. Evidence of the Phone Ring

State’s Exhibit Two is a video of the loss-prevention detention room at

Nebraska Furniture Mart in which Jeanty and Merisier were detained. McGregor

testified that the video was a fair and accurate depiction of the detention room. At

one point during the video, McGregor makes a phone call, a cell phone rings, and

Merisier looks down toward her pants. When asked about the incident, McGregor

testified as follows:

17 In addition to the transactional information contained in Exhibit Five, Exhibit Nineteen contains a description of the vehicle that will pick up the televisions and also reflects the false printed name and signature of “Pierre Pascal” provided by Jeanty when he picked up the televisions.

40 I called the phone number that was placed onto the credit account. The 817 phone number that was used to open the account.

....

. . . Right when I dialed the number, it appeared that there was a noise coming from [Merisier’s] pocket. It sounded like a cell phone. McGregor also testified that the number he dialed was the same number he had

previously called during his investigation when a male answered and then handed the

phone to a woman.

2. The Phone Ring Is Not Hearsay

Hearsay is a statement, other than one made by the declarant while testifying at

trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid.

801(d). The rules of evidence define “statement” as “a person’s oral or written verbal

expression, or nonverbal conduct that a person intended as a substitute for verbal

expression” and “declarant” as “the person who made the statement.” Tex. R. Evid.

801(a)–(b) (emphasis added). As a machine, Merisier’s cell phone cannot itself be a

“declarant” for purposes of the hearsay rule; thus, the ring is not hearsay.18 See id;

18 Rule 901(b)(6) of the Texas Rules of Evidence and the cases cited by Jeanty regarding the admissibility of telephone conversations and text messages are inapposite. Evidence of a phone ring is fundamentally different from evidence of a recorded conversation between two people because unlike a phone ring, a text or phone conversation necessarily contains “a person’s oral or written verbal expression” and thus one or more “statement[s]” made by a “declarant.” See Tex. R. Evid. 801(a)– (b); cf. Murray v. State, 804 S.W.2d 279, 284 (Tex. App.—Fort Worth 1991, pet. ref’d) (admonishing that “it would be incorrect to assume that a hearsay problem is present anytime a machine ‘talks,’ transmits data, or otherwise communicates information” and clarifying that “[m]echanical devices . . . are not persons and cannot be ‘declarants.’

41 Nguyen v. State, No. 05-20-00241-CR, 2022 WL 3714494, at *8 (Tex. App.—Dallas

Aug. 29, 2022, pet. ref’d) (mem. op., not designated for publication) (“The black box

of appellant’s vehicle is a computer and, by definition, cannot be a declarant for

purposes of the rule against hearsay.” (citing Stevenson v. State, 920 S.W.2d 342, 343

(Tex. App.—Dallas 1996, no pet.) (en banc))). Nor does McGregor’s in-court

testimony concerning the number he dialed and his observations of what occurred in

the detention room afterward constitute hearsay. See Tex. R. Evid. 801(d); cf. Thompson

v. State, No. 12-03-00014-CR, 2003 WL 22839810, at *4 (Tex. App.—Tyler Nov. 26,

2003, pet. ref’d) (mem. op., not designated for publication) (holding officer’s

commentary on the audio portion of a videotape depicting his pursuit of the appellant

was hearsay “because the observations were not made by [the officer] while testifying at trial”

(emphasis added)). Because the evidence of the phone ring was not hearsay, the trial

court did not abuse its discretion by admitting it. 19

We overrule Jeanty’s eleventh point.

But they can serve as vehicles for storing or transmitting ‘statements’ made by a ‘person.’” (quoting David A. Schlueter, Hearsay—When Machines Talk, 53 Tex. Bar J. 1135 (1990))).

In any event, given the abundance of other evidence connecting Jeanty to the 19

offense, any error in the admission of evidence concerning the phone ring would be harmless. See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

42 G. Point Twelve: The Law of Parties Instruction Was Harmless

In his twelfth point, Jeanty argues that the trial court’s law of parties instruction

was erroneously given because the evidence was legally insufficient to support party

liability. However, even if we were to assume—without deciding—that the trial

court’s instruction regarding party liability was erroneous, any such error would be

harmless.

Under the law of parties, “[a] person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another for

which he is criminally responsible, or by both.” Tex. Penal Code Ann. § 7.01(a). “A

person is criminally responsible for an offense committed by the conduct of another

if . . . acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to commit the

offense.” Id. § 7.02(a)(2).

A law of parties instruction is appropriate when the evidence shows that the

defendant’s conduct alone was not sufficient to prove the offense but was dependent

on the conduct of another. Brown v. State, 716 S.W.2d 939, 944 (Tex. Crim. App.

1986). Such an instruction is not required if the defendant’s conduct alone would be

sufficient to sustain a conviction. Id. A law of parties instruction “is permissible if the

evidence raises both the theory that the defendant did the act charged and the theory

that another person participated with [the] defendant in doing that act.” Id. (quoting

43 Percy Foreman & Luther E. Jones, Jr., Submitting Law of Parties in a Texas Criminal

Prosecution, 33 Baylor L. Rev. 267 (1981)).

In the present case, it is unnecessary for us to determine whether the trial court

erred in submitting an instruction on the law of parties because such an instruction is

harmless in situations where the evidence clearly supports a defendant’s guilt as a

principal actor. See Ladd v. State, 3 S.W.3d 547, 564–65 (Tex. Crim. App. 1999); Cathey

v. State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999). Having already determined that

the evidence was sufficient to support Jeanty’s conviction as a principal actor,20 we

conclude that any error concerning the law of parties instruction was harmless. See

Cathey, 992 S.W.2d at 466.

We overrule Jeanty’s twelfth point.

H. Point Thirteen: The Admission of State’s Exhibits Twelve-A, Thirteen, and Fourteen In his thirteenth point, Jeanty argues that the trial court erred by admitting

State’s Exhibits Twelve-A, Thirteen, and Fourteen because they were the fruits of an

unlawful search and seizure. Jeanty’s argument lacks merit.

1. Applicable Law and Standard of Review

Under the Fourth Amendment, “a warrantless search is per se unreasonable

unless it falls within a warrant exception.” Marcopoulos v. State, 538 S.W.3d 596, 599

(Tex. Crim. App. 2017). “The automobile exception allows for the warrantless search

20 See supra Section II.B.

44 of an automobile ‘if it is readily mobile and there is probable cause to believe that it

contains contraband.’” Id. (quoting Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim.

App. 2009)).

“Probable cause exists where the facts and circumstances known to law

enforcement officers are ‘sufficient in themselves to warrant a man of reasonable

caution in the belief that an offense has been or is being committed.’” Id. at 599–600

(quoting Brinegar v. United States, 338 U.S. 160, 175–76, 69 S. Ct. 1302, 1311 (1949)).

Probable cause also requires “a ‘fair probability’ of finding inculpatory evidence at the

location being searched.” Id. at 600 (quoting Neal v. State, 256 S.W.3d 264, 282 (Tex.

Crim. App. 2008)). “An officer’s observation of contraband or evidence of a crime in

plain view inside an automobile can be used to establish probable cause to seize the

contraband or evidence.” Barnes v. State, 424 S.W.3d 218, 225 (Tex. App.—Amarillo

2014, no pet.) (citing Dahlem v. State, 322 S.W.3d 685, 689 (Tex. App.—Fort Worth

2010, pet. ref’d)). Further, when an officer has “probable cause to search for

contraband in a car, it is reasonable . . . to examine packages and containers without a

showing of individualized probable cause for each one.” Wyoming v. Houghton, 526 U.S.

295, 302 , 119 S. Ct. 1297, 1301 (1999).

When reviewing a trial court’s ruling on a motion to suppress, we “must view

the evidence in the light most favorable to the trial court’s ruling.” Marcopoulos,

538 S.W.3d at 600 (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)).

Applying a bifurcated standard of review, “[w]e will afford ‘almost total deference’ to

45 a trial court’s express or implied ‘determination of historical facts’ and review de novo

‘the court’s application of the law of search and seizure’ to those facts.” Id. (quoting

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)).

2. Lieutenant Stevens’s Search of Jeanty’s Vehicle

At the pre-trial hearing on Jeanty’s motion to suppress, Lieutenant Stevens

testified that when he arrived at Nebraska Furniture Mart on November 9, 2015,

McGregor had detained Jeanty and Merisier. After arresting them for fraud, Stevens

went to the customer pick-up area where Jeanty’s vehicle was parked. Stevens testified

that the fraudulently purchased Dyson vacuum was clearly visible through the

vehicle’s windows. Having observed the fraudulently obtained vacuum inside the

vehicle, Stevens believed that he had probable cause to search it for other evidence of

fraud. Also, given the location of the vehicle, he was concerned that a friend or family

member with an extra key could come and drive the vehicle away if he did not search

it immediately.

During his search, Stevens observed a drawstring bag that appeared to have a

laptop in it; because computers are commonly used to open fraudulent accounts, he

searched the bag. In the bag, he found two letters addressed to “Mary Pascal” at the

Grand Prairie address (State’s Exhibits Thirteen and Fourteen) and a letter addressed

to “Frantzi Jeanty” at the Grand Prairie address (State’s Exhibit Twelve-A).

46 3. Analysis

The trial court did not err by admitting State’s Exhibits Twelve-A, Thirteen,

and Fourteen because the warrantless search of Jeanty’s vehicle fell under the

automobile exception. See id. at 599. That the vehicle was “readily mobile” is not in

doubt as Jeanty had just driven it to the customer pick-up area not long before the

search took place. See Keehn, 279 S.W.3d at 336 (holding defendant’s use of van days

before search demonstrated that it was “readily mobile”). Further, because Stevens

observed the fraudulently obtained vacuum in the vehicle, he had probable cause to

search it for other contraband or evidence. See Barnes, 424 S.W.3d at 225. This

probable cause extended to the bag containing the letters. See Wyoming, 526 U.S. at

302, 119 S. Ct. at 1301. Because the automobile exception applies, the search was

lawful, and the trial court did not err by admitting State’s Exhibits Twelve-A,

Thirteen, and Fourteen.21

We overrule Jeanty’s thirteenth point.

I. Point Fifteen: No Cumulative Harm

In his fifteenth point, Jeanty asserts that the cumulative effect of all the

complained-of errors warrants reversal of the trial court’s judgment of conviction.

Having overruled Jeanty’s first fourteen points, we likewise overrule his fifteenth

point. See Abel v. State, No. 02-18-00051-CR, 2020 WL 5048078, at *36 (Tex. App.—

In any event, given the abundance of other evidence, even if we were to 21

conclude that the admission of these exhibits was improper, such error would be harmless. See Tex. R. App. P. 44.2(b); Solomon, 49 S.W.3d at 365.

47 Fort Worth Aug. 27, 2020, no pet.) (per curiam) (mem. op., not designated for

publication) (holding that because the court had overruled appellant’s other appellate

issues, his “cumulative-error complaint lacks merit because there is no error to

cumulate”); Bell v. State, No. 02-18-00244-CR, 2019 WL 1967538, at *9 (Tex. App.—

Fort Worth May 2, 2019, pet. ref’d) (mem. op., not designated for publication) (“Bell

argues that even if each of his previous points do not constitute harm sufficient for

reversal, their cumulative effect does, undermining the fundamental fairness of the

proceedings. But his individual points either do not demonstrate reversible error or do

not show that he was harmed. Therefore, there is no error to cumulate.”); Baker v.

State, No. 03-18-00240-CR, 2019 WL 1646260, at *7 (Tex. App.—Austin Apr. 17,

2019, no pet.) (mem. op., not designated for publication) (“Here, Baker’s cumulative-

error contention lacks merit because we have concluded, as to his preserved appellate

issues, that one complained-of error was harmless and that there was no error as to

the remaining complaints.”).

III. Conclusion

Having overruled all of Jeanty’s points, we affirm the trial court’s judgment.

/s/ Wade Birdwell

Wade Birdwell Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: