In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-16-00386-CR 

JANICE BATES, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 181st District Court 

Potter County, Texas 

Trial Court No. 69,938-B, Honorable John B. Board, Presiding 

 

January 18, 2018 

 

OPINION 

 

Before CAMPBELL and PIRTLE and PARKER, JJ. 

Appellant, Janice Bates, appeals her conviction for the offense of theft1 and 

resulting sentence of sixteen years’ imprisonment in the Texas Department of Criminal 

Justice, Institutional Division, and $2,500 fine. We will affirm the judgment of the trial 

court.

 

1 See TEX. PENAL CODE ANN. § 31.03 (West Supp. 2017).
2

Factual and Procedural Background

On December 23, 2014, appellant and a male entered the JCPenney store in 

Westgate Mall. Appellant and the male went to a fitting room, which the male entered. 

Appellant then walked around the store selecting clothing items, including a stack of Levi’s 

jeans that she picked up without looking at their sizes or prices. Appellant took the clothes 

to the male in the fitting room and handed them to him. After gathering some more items 

from the store and taking them to the male in the fitting room, appellant eventually entered 

the fitting room with the male. After about ten minutes, the couple emerged from the 

fitting room. Appellant was carrying two full JCPenney bags. Appellant walked past the 

cash registers and exited the store. A JCPenney loss prevention officer stopped appellant 

outside of the store. After police were called, it was determined that appellant had $882 

in JCPenney merchandise in her possession.

Appellant was indicted for the state jail felony offense of theft based on two prior 

convictions for theft. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D). The indictment alleged 

that the offense occurred within Potter County. Immediately before trial was to begin, the 

State moved to amend the indictment to specify that the offense was committed within 

400 yards of Potter County. The trial court granted the motion but the indictment was not 

physically altered to reflect the amendment. 

During the ensuing trial, two employees of JCPenney testified that JCPenney at 

Westgate Mall is split down the middle by the Potter and Randall county line and that the 

entirety of JCPenney is within 400 yards of the county line. An Amarillo police officer 

testified that, because the county line splits Westgate Mall, there is an agreement 
3

between the two counties that persons arrested at the mall are taken to the Potter County 

Jail. When the jury was charged, it was instructed that it could consider Potter County to 

include the first 400 yards of Randall County. The jury returned a verdict finding appellant 

guilty “as alleged in the [i]ndictment.”

Just before the trial began, the State informed the trial court that it was seeking to 

enhance appellant’s punishment by proof of two prior felony convictions. The State 

informed the trial court that appellant was aware that the State was seeking 

enhancement. Appellant did not object to this statement. After appellant was found guilty, 

the State again addressed its intent to enhance appellant’s punishment. The State read 

the enhancement allegations to the jury. In so doing, the State alleged that appellant had 

“committed” one of the offenses and been convicted of the other.2 Appellant pled true to 

the enhancement allegations. Based on appellant’s plea, the trial court instructed the jury 

to return a punishment verdict finding the enhancement allegations to be true. The jury 

returned a verdict sentencing appellant to sixteen years’ imprisonment and a $2,500 fine.

By her appeal, appellant presents four issues. By her first issue, she contends 

that the State’s verbal amendment of the indictment to allege that the theft offense 

occurred within 400 yards of Potter County was error that caused appellant some harm 

and counsel should be excused from objecting to this error. By her second issue, 

appellant contends that the oral amendment of the indictment addressed in her first issue 

was error that caused her egregious harm. By her third issue, appellant contends that 

her sentence was illegal because the State did not properly plead its enhancement 

 

2 Certified copies of these convictions were admitted into evidence as impeachment evidence.
4

allegations. By her fourth issue, appellant contends that her sentence was illegal because 

the State alleged that she had only committed one of the prior felonies, rather than having 

been convicted of it.

Venue Issues

By her first and second issues, appellant contends that the State’s verbal 

amendment of the indictment altering the allegation that the theft offense occurred in 

Potter County to allege that the offense occurred within 400 yards of Potter County was 

reversible error whether counsel was excused from objecting to the jury charge or 

whether assessed under the egregious harm standard.

Both of appellant’s first two issues are addressed to the jury charge. We review a

claim of jury charge error using the procedure identified in Almanza v. State, 686 S.W.2d 

157, 171 (Tex. Crim. App. 1985), overruled on other grounds, Rodriguez v. State, 758 

S.W.2d 787 (Tex. Crim. App. 1988). See Barrios v. State, 283 S.W.3d 348, 350 (Tex. 

Crim. App. 2009). Using that procedure, we must first determine whether the charge was 

in error. Id.; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If the charge is 

not in error, no further inquiry need be made. If there is error but the appellant did not 

object to the error, reversal is required if the error caused appellant egregious harm. 

Almanza, 686 S.W.2d at 171. Egregious harm occurs when the error affects the very 

basis of the case, deprives the defendant of a valuable right, vitally affects a defensive 

theory, or makes the case for conviction clearly and significantly more persuasive. Taylor 

v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011). However, if there was error and 

the appellant did object to that error, reversal is required if the error is calculated to injure 
5

the rights of the defendant, i.e., if there is some harm. Barrios, 283 S.W.3d 350; Almanza, 

686 S.W.2d at 171. In either case, the degree of harm is determined in light of the entire 

jury charge, the state of the evidence, including the contested issues and the weight of 

the probative evidence, the argument of counsel, and any other relevant information 

revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.

So, we must initially determine whether it was error for the trial court to charge the 

jury that appellant should be found guilty if the jury determined that she committed the 

offense of theft within 400 yards of Potter County when the indictment did not expressly 

include such an allegation and when the State’s amendment of the indictment was not 

reduced to writing on the indictment or a copy thereof. Texas Code of Criminal Procedure

article 13.04 provides that, “[a]n offense committed on the boundaries of two or more 

counties, or within four hundred yards thereof, may be prosecuted and punished in any 

one of such counties . . . .” TEX. CODE CRIM. PROC. ANN. art. 13.04 (West 2015). Further, 

article 21.06 provides that, “[w]hen the offense may be prosecuted in either of two or more 

counties, the indictment may allege the offense to have been committed in the county 

where the same is prosecuted . . . .” Id. art. 21.06 (West 2009). An offense may be 

alleged to have occurred in whichever county it is being prosecuted in so long as the 

offense occurred within the county or within 400 yards of the county, and the indictment 

does not need to specifically aver that the offense occurred within 400 yards of the county. 

Rushing v. State, 546 S.W.2d 610, 611 (Tex. Crim. App. 1977). Consequently, the jury 

charge’s instruction that venue extends to an offense committed within 400 yards of the 

boundary of Potter County was a correct statement of the law governing the case. Thus, 
6

the jury charge was not in error. See Barrios, 283 S.W.3d at 350; Ngo, 175 S.W.3d at

743. 

We overrule appellant’s first two issues.

Enhancement Issues

Appellant’s third and fourth issues contend that the means utilized by the State to 

seek enhancement of appellant’s punishment based on her prior felony convictions were 

improper. Her third issue contends that the enhancement allegations were not properly 

pled by the State. Her fourth issue contends that the State’s oral reading of the 

enhancement allegations alleged that appellant had only committed one of the offenses, 

rather than having been convicted of the offense.

As a prerequisite to presenting a complaint for appellate review, an appellant must 

have raised the issue at the trial court level stating the specific grounds for objection and 

received an adverse ruling. TEX. R. APP. P. 33.1(a). A defendant’s entitlement to a 

pleading of the State’s intent to enhance the defendant’s punishment by proof of prior 

felony convictions is a right that must be specifically invoked or else it is forfeited. See 

Nelson v. State, No. 06-09-00184-CR, 2010 Tex. App. LEXIS 4908, at *14-15 (Tex. 

App.—Texarkana June 29, 2010, no pet.) (mem. op., not designated for publication); 

Harris v. State, 204 S.W.3d 19, 27 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).

In the present case, appellant did not object to the State’s announcement that it 

was seeking to enhance appellant’s punishment due to two prior felony convictions. Prior 

to the beginning of the trial, the State declared that it intended to enhance appellant’s 

sentence based on prior felony convictions of which she had been notified. Appellant 
7

voiced no objection to this statement. At the beginning of punishment, the State again 

indicated that it was seeking to enhance appellant’s punishment based on two prior felony 

convictions, which it then read to the jury. In reading the enhancements, the State stated 

that appellant had committed one of the offenses, rather than that she had been convicted 

of the offense. At that time, not only did appellant not object but she actually pled true to 

the enhancement allegations. Further, when she was sentenced to a term of confinement 

that exceeded the range of punishment for the state jail felony for which she was 

convicted and for a third-degree felony that would apply if she had only been previously 

convicted of one prior felony, appellant raised no objection. Consequently, we conclude 

that appellant did not preserve any error regarding the manner in which the State notified 

appellant that it intended to use two prior felony convictions to enhance her punishment 

to that of a second-degree felony.3 See Nelson, 2010 Tex. App. LEXIS 4908, at *14-15; 

Harris, 204 S.W.3d at 27.

Additionally, appellant pled true to the enhancement allegations and evinced no 

surprise or objection when the enhancements were discussed by the State. See Nelson, 

2010 Tex. App. LEXIS 4908, at *15. Nothing in the record reflects that appellant’s defense 

was impaired by the State’s late indication that it was seeking to enhance appellant’s 

punishment under the habitual offender statute. Mares v. State, No. 05-14-00454-CR, 

2015 Tex. App. LEXIS 5514, at *6-7 (Tex. App.—Dallas May 29, 2015, no pet.) (mem. 

 

3

In addition to failing to object to the lack of enhancement pleading during the trial, appellant did 

not file a motion for new trial raising the issue of the State having inadequately pled the enhancements or 

using the “commission” of an offense for enhancement rather than a conviction. See Fairrow v. State, 112 

S.W.3d 288, 293 (Tex. App.—Dallas 2003, no pet.) (reviewing claim that appellant did not receive written 

notice of the State’s intent to enhance punishment under habitual offender statute even though appellant 

did not object when the trial court notified him of the possibility that his sentence could be enhanced or 

when he was actually sentenced because appellant timely filed a motion for new trial raising the issue).
8

op., not designated for publication). When a defendant offers no defense to the 

enhancement allegations and does not request a continuance to prepare a defense, 

notice given at the beginning of the punishment phase satisfies due process. Villescas 

v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006).

Conclusion

Having determined that the trial court did not err in charging the jury regarding the 

appropriate venue applicable to the case and concluding that appellant failed to preserve 

her issues regarding the use of two properly sequenced prior felony convictions to 

enhance her punishment, we affirm the judgment of the trial court.

Judy C. Parker

 Justice

Publish.