NUMBERS

13-13-00379-CR

13-13-00380-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

TRACI SHEPPARD SCHROEDER

A/K/A TRACI LEE SCHROEDER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the Criminal District Court No. 3

of Dallas County, Texas.

MEMORANDUM OPINION

Before Justice Garza, Benavides and Perkes

Memorandum Opinion by Justice Garza
2

A Dallas County jury convicted appellant, Traci Sheppard Schroeder a/k/a Traci 

Lee Schroeder, of one count of fraudulent use or possession of identifying information,

1

see TEX. PENAL CODE ANN. § 32.51(b) (West, Westlaw through 2013 3d C.S.), and one 

count of possession of methamphetamine.

2 See TEX. HEALTH & SAFETY CODE ANN. 

§§ 481.102(6), 481.115(a) (West, Westlaw through 2013 3d C.S.). After finding two 

enhancement paragraphs true, the jury sentenced Schroeder to prison terms of nine and 

one-half years and four years for the respective offenses, and the sentences were 

ordered to run concurrently.

Schroeder raises twelve issues on appeal. She contends that: (1) the evidence 

was insufficient to show that she fraudulently used or possessed identifying information; 

(2) the trial court erred by refusing her request to include a definition of “harm” in the jury 

charge; (3) the trial court erred by admitting evidence obtained from underneath a mobile

phone battery; (4) the trial court erred by requiring her to wear shackles during trial; (5) 

the trial court erred by admitting prior judgments of conviction in the fraudulent 

identification case; (6) the trial court erred by admitting prior judgments of conviction in 

the methamphetamine possession case; (7) there was insufficient evidence to support 

enhancement paragraphs in the fraudulent identification case; and (8) there was 

insufficient evidence to support enhancement paragraphs in the methamphetamine 

possession case. Schroeder further raises four issues seeking to correct clerical errors 

in the judgments.

Because the enhancement paragraphs were supported by insufficient evidence, 

 

1 Appellate cause number 13-13-00379-CR.

2 Appellate cause number 13-13-00380-CR.
3

we will reverse the punishments assessed, affirm the remainder of the judgments as 

modified, and remand for further proceedings.

3

I. BACKGROUND

Indictments filed on September 20, 2012 alleged that Schroeder: (1) “with intent 

to harm and defraud another, and without the effective consent of” the complainant 

Elizabeth McCullough, “use[d] identifying information of said complainant, to-wit: NAME, 

ADDRESS AND DATE OF BIRTH”; and (2) intentionally and knowingly possessed less 

than one gram of methamphetamine.4 The fraudulent identification indictment also 

alleged that Schroeder had been previously convicted of felony criminal mischief in 1990 

and felony credit card abuse in 1994. The State later filed notice of intent to use those 

prior convictions in the methamphetamine possession case as well.

At trial, Officer Eric LaCross of the Irving Police Department testified that, at around 

9:00 p.m. on September 10, 2012, he attempted to pull over a vehicle that was being 

operated without headlights. When the vehicle stopped at a red light, “the front passenger 

got out of the vehicle and contacted” the officer. LaCross testified that the passenger told 

him “something had caught fire in the car, so they didn’t have headlights, and they had 

called dispatch and somebody in dispatch had told them to drive on the highway without 

lights.” He instructed the driver to pull into an adjacent parking lot when the light turned 

green. The driver did so and identified himself as Michael Avina. LaCross asked Avina 

for his driver’s license and explained to him that he cannot drive at night without 

 

3 This appeal was transferred from the Fifth Court of Appeals pursuant to a docket equalization 

order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 

2013 3d C.S.).

4 The fraudulent identification indictment and judgment of conviction refer to the defendant therein 

as “TRACI SHEPPARD SCHROEDER.” The methamphetamine possession indictment and judgment of 

conviction refer to the defendant therein as “TRACI LEE SCHROEDER.”
4

headlights. LaCross then asked the passenger for her name, and she replied that her 

name is Elizabeth McCullough. The passenger further stated that her date of birth is

January 16, 1963 and she works at Brighton-Best, a distributor of industrial products. She 

also gave her address and phone number. She was not able to produce a driver’s license.

LaCross went back to his patrol unit and checked for outstanding warrants using 

the names and information provided by Avina and the passenger.

5

 The search revealed 

that Avina and McCullough both had previous arrests. Afterward, he let the driver and 

passenger go without ticketing them or arresting them.

6

 However, he stated that the 

passenger’s behavior was suspicious, in part because she “told [him] several different 

date[s] of birth[] at first” and “didn’t have any kind of ID.”

According to LaCross, his colleague Detective James McLelland later informed 

him that he “had obtained a warrant related to someone giving out Elizabeth McCullough’s 

identifying information.” McLelland told LaCross that Schroeder was the person using 

that information. LaCross identified Schroeder in the courtroom.

On September 13, 2012, LaCross went with another officer to the address provided 

by Avina in order to execute the warrant and arrest Schroeder. However, there was a 

lock-out device attached to the knob of the apartment’s front door. A security guard at 

the apartment complex described Avina’s vehicle, and LaCross waited for Avina to return. 

After about an hour, he saw a vehicle that matched the description. LaCross followed the 

vehicle and stopped it when “[t]he driver failed to use his turn signal when he turned into 

 

5 He also “sent an image to dispatch . . . asking if anybody had told somebody that called in to drive 

on the highway without their lights on.” As the officer expected, “nobody responded that they told them that 

it was okay to drive down the highway without headlights.”

6 LaCross initially agreed on cross-examination that Avina and his passenger “w[ere] not being 

detained” at that time. However, he later stated during re-direct examination that they were being lawfully 

detained pursuant to a lawful traffic stop, and that they were not free to leave.
5

the apartments.” Avina was driving. LaCross first made contact with Avina and then

made contact with Schroeder, the passenger. He arrested Schroeder pursuant to the 

warrant that had been issued.

LaCross testified that Schroeder “carried [a purse] with her out of the car when she 

first stepped out,” and he “asked her to put it back in the seat so [he] could handcuff her 

safely.” He then handcuffed Schroeder and placed her in the back of his patrol unit. He 

then went back to Avina and asked for consent to search Avina’s car. Avina granted 

consent to search the car, but LaCross did not find anything of interest. LaCross did not 

search the purse at that time because “[Avina] could not give consent for me to search 

her stuff.” At some point, Schroeder asked Avina if Avina would take her purse. LaCross 

did not allow Avina to take the purse, however, because “[i]t’s possible that . . . she had 

other identifying information in her purse or something related to that offense.” Schroeder 

then asked LaCross if she could give Avina her car keys; LaCross reached into the purse, 

took the car keys, and gave them to Avina. LaCross stated that no one else had access 

to the purse from the time he pulled the car over to the time he “took the car and put in 

the purse to take with [him] to the jail.”

LaCross testified that, after he brought Schroeder to the Irving City Jail, he 

searched her purse incident to the arrest. When asked why he searched the purse at the 

jail instead of at the scene, LaCross testified: “I would rather search it in a well-lit area 

that has a table that I can set things down on as opposed to inside of a vehicle or on the 

hood of a squad car.” He stated:

I looked for further evidence of the crime, the—especially identifying 

information. She had two cellphones in her purse, which I thought was a 

little bit strange. One didn’t have a back or battery in it, and the other one 

had a battery and a back. I took off the back of the cellphone, and behind 
6

the battery was a small piece of paper with a small amount of 

methamphetamines in it.[

7

]

LaCross stated that he searched under the battery because “anything that goes into the 

jail, I’m liable for. So if there’s, I don’t know, a razor blade or some other drugs or 

something, anything that gets into the jail, it’s on me that it got to that.” He said it was not 

uncommon to “find drugs hidden in this manner.”

On cross-examination, LaCross could not recall whether Schroeder had in fact 

“never changed that birth date that she gave [him]” initially. He conceded that he did not 

personally check whether Schroeder lived at the address she provided to him on 

September 10. He denied knowing that Avina had been arrested at his apartment 

between September 10 and September 13. LaCross stated that his intention on 

September 13 was to stop Avina’s car to see if Schroeder was inside; however, he denied 

that he was “going to stop the vehicle no matter what,” even if there was no traffic 

infraction. He conceded that Avina was alone in his car with Schroeder’s purse for about 

two minutes, but that “I believe my backup officer was there as well, and he had an eye 

on him.” He later conceded that he is not certain that the other officer was observing 

Avina during that time. LaCross stated that he does not have any evidence that 

Schroeder knew that the drugs were inside the cell phone.

LaCross testified that both the September 10 and September 13 interactions were 

captured on his patrol unit’s video recording system. The video recordings were played 

for the jury.

McLelland testified that he “began receiving a series of phone calls” in August or 

 

7 LaCross later testified, when asked whether he recalled the weight of the drugs that he seized: 

“That’s a usable amount, so it would be 0.1 grams.”
7

September 2012 from Tonya Strickland, who “identified herself as a relative of a warrant 

officer of ours who was calling on behalf of a friend.” McLelland agreed that, based on 

the calls, his “attention [was] drawn to a potential traffic stop involving either Elizabeth 

McCullough or [Schroeder].” He searched for Schroeder’s name in his computer system 

and “found out that [he] had been assigned a case involving a traffic stop that occurred 

earlier that morning.” According to McLelland, “the report was . . . written up with 

allegations of identity theft for things that happened during the stop.” The case was 

assigned to him because he handles fraud and financial crimes. McLelland reviewed the 

September 10 video from LaCross’s patrol unit and compared driver’s license images of 

McCullough and Schroeder to the female that appeared in the video. McLelland stated 

that the female in the video, despite identifying herself as McCullough, is “clearly” 

Schroeder.

McLelland made contact with the actual Elizabeth McCullough. Based on his 

conversation with her, he believed that Schroeder had committed the offense of 

fraudulent use or possession of identifying information, and he obtained a warrant for 

Schroeder’s arrest. He informed LaCross that he had obtained a warrant.

Later, McLelland sought to interview Schroeder in jail. After being administered

Miranda warnings, see Miranda v. Arizona, 384 U.S. 436 (1966), Schroeder agreed to 

speak with him. According to McLelland, Schroeder stated that she used to live with 

McCullough, and she admitted that she provided McCullough’s name and date of birth to 

LaCross during the September 10 traffic stop. Schroeder stated that McCullough had 

given her consent to use McCullough’s identifying information in order to register a car. 

McLelland did not ask Schroeder whether McCullough gave her permission to give 
8

McCullough’s identifying information to police if she were in a traffic stop.

On cross-examination, McLelland stated that McCullough initially did not want to 

file a complaint because “she was concerned for her safety about doing so.” He later 

clarified that McCullough was afraid of Schroeder. He agreed that, according to his police 

report, McCullough had an appointment to meet with him at the police station the next 

day, but she did not appear or call to cancel. McLelland denied that “there is no intent to 

harm or defraud anybody in this case”; he explained that Schroeder’s “intentions to harm 

or defraud were directed toward Officer LaCross at the time of his stop.” When defense 

counsel asked how McCullough had been harmed or defrauded in this case, McLelland

replied: “Her name was listed in the police report when it should not have been because 

of Ms. Schroeder’s identifying herself in that capacity.”

McCullough testified that her date of birth is January 16, 1963 and that she works 

at Brighton-Best. She stated that she lives at the exact address given by Schroeder 

during the September 10 traffic stop. She has known Schroeder for thirty-five years, and 

she was in an “[o]ff and on” relationship with Schroeder from 2007 to 2012. When

Schroeder’s car became impounded in March 2012, McCullough agreed to help 

Schroeder by obtaining insurance for her using McCullough’s information, so that 

Schroeder’s car would be released from impound. McCullough denied ever giving 

permission to Schroeder to use her information to register any car. She agreed that 

Tonya Strickland, her friend “who had a brother who is a police officer,” called Irving police 

to ask “what I could do to get the car out of my name.”

In August 2012, McCullough’s driver’s license went missing. The next month, she 

was contacted by police asking if she was part of a routine traffic stop on September 10. 
9

She replied that she was not. McCullough stated that, initially, she was hesitant to 

participate in the investigation “[b]ecause we’ve been good friends for so long. I didn’t 

want to bring any harm her way, but I had to protect myself.” When asked whether she 

was afraid of Schroeder, McCullough replied: “If she’s capable of doing that, I didn’t know 

what else she would be capable of doing.” McCullough denied ever giving Schroeder her 

driver’s license, or ever giving Schroeder permission to use her name, date of birth, or 

address for any purpose. She said it is “[p]robably safe to say” that she and Schroeder 

are no longer friends.

Schroeder was convicted as charged. At the punishment phase, the trial court 

admitted into evidence, over defense counsel’s objections, two judgments reflecting prior 

convictions. No witnesses testified at the punishment phase. The jury found the two 

enhancement paragraphs true and sentenced Schroeder as set forth above. This appeal 

followed.8

II. DISCUSSION

A. Evidentiary Sufficiency

We first address Schroeder’s evidentiary sufficiency issues. See, e.g., Lucas v. 

State, 245 S.W.3d 611, 612 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (noting that 

issues calling for rendition of judgment are considered before issues calling for remand).

In reviewing the sufficiency of evidence supporting a conviction, we consider the 

evidence in the light most favorable to the verdict to determine whether any rational trier 

of fact could have found the essential elements of the crime beyond a reasonable doubt. 

 

8 The State submitted its appellate brief to this Court on July 22, 2014, some 29 days after it was 

due pursuant to an extension of time previously granted by this Court on May 23, 2014. See TEX. R. APP.

P. 38.6. The State also moved for a second extension of time to file the brief. We hereby grant the motion 

and accept the brief.
10

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323 

S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 

U.S. 307, 319 (1979)). We give deference to “the responsibility of the trier of fact to fairly 

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences 

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 

2007) (citing Jackson, 443 U.S. at 318–19). When faced with conflicting evidence, we 

presume that the trier of fact resolved any such conflict in favor of the prosecution, and 

we defer to that resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

Sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997). Such a charge is one that 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. This principle applies to necessary elements of the 

offense as well as to findings necessary to support enhanced punishment. Young v. 

State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000).

1. Fraudulent Use of Identifying Information

By her first issue, Schroeder argues that there was insufficient evidence to support 

the jury’s finding that she fraudulently possessed or used identifying information. A 

hypothetically correct jury charge would state that Schroeder is guilty of the offense as 

charged in the indictment if she: (1) with intent to harm and defraud another, (2) used the 

name, date of birth and address of Elizabeth McCullough, (3) without McCullough’s 
11

effective consent. See TEX. PENAL CODE ANN. § 32.51(b); see id. § 32.51(a)(1)(A)

(defining “identifying information” as including a person’s name and date of birth).

Schroeder argues specifically that the State failed to prove beyond a reasonable 

doubt that she “intended to harm or defraud a person as charged in the indictment.” See 

id. § 32.51(b). She argues that “[t]he State’s theory of the case centered on its position 

that [she] harmed or defrauded Officer LaCross” but that “the State offered no specific 

evidence regarding what harm or fraud [she] intended by giving McCullough’s name to 

LaCross during the routine traffic stop.” She further argues that there was no evidence 

that she intended to harm or defraud McCullough, noting that, in response to being asked 

whether she thought Schroeder intended to harm her, McCullough replied: “I don’t know 

what her purpose was.”

We disagree that the evidence was insufficient in this regard.9 Intent may generally 

be inferred from circumstantial evidence such as acts, words, and the conduct of the 

appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). “Intent to defraud 

has been defined as the intent to cause another to rely upon the falsity of a representation, 

such that the other person is induced to act or to refrain from acting.” Martinez v. State, 

6 S.W.3d 674, 678 (Tex. App.—Corpus Christi 1999, no pet.) (finding sufficient evidence 

to support conviction for tampering with governmental records) (citing 41 TEX. JUR. 3D

Fraud and Deceit § 9 (1998)); see Garcia v. State, 630 S.W.2d 303, 305 (Tex. App.—

 

9 There appears to have been no evidence adduced at trial as to Schroeder’s actual date of birth 

or address. Nevertheless, Schroeder does not argue on appeal that the evidence was insufficient to 

establish that she used McCullough’s date of birth or address, as alleged in the indictment. Even if 

Schroeder did make this argument, it would not be meritorious because the evidence was clearly sufficient 

to establish that she used McCullough’s name. See Anderson v. State, 717 S.W.2d 622, 631 (Tex. Crim. 

App. 1986) (noting that it is proper for an indictment to allege various manners and means of committing 

an offense in the conjunctive, and for those different methods of committing the offense to be charged to 

the jury in the disjunctive); Negrini v. State, 853 S.W.2d 128, 134 (Tex. App.—Corpus Christi 1993, no pet.)

(same).
12

Houston [1st Dist.] 1981, no pet.) (noting in a forgery case that the use of deception, such 

as giving false information, is evidence of intent to defraud and harm). “Harm” is defined 

in the penal code as “anything reasonably regarded as loss, disadvantage, or injury, 

including harm to another person in whose welfare the person affected is interested.” 

TEX. PENAL CODE ANN. § 1.07(a)(25) (West, Westlaw through 2013 3d C.S.). Here, 

LaCross testified that, when he stopped Avina’s car on September 10, 2012 for driving at 

night without headlights, Schroeder told him that her name was Elizabeth McCullough 

and that her date of birth was January 16, 1963. The actual Elizabeth McCullough

testified that she was not involved in a traffic stop on that date and had not given 

Schroeder consent to use her identifying information. McLelland testified that the female 

appearing in the September 10 traffic stop video “clearly” matched the picture in 

Schroeder’s driver’s license record, and that Schroeder admitted to using McCullough’s 

identifying information when he interviewed her in jail. It is reasonable to conclude from 

this evidence that Schroeder identified herself as McCullough with, at the very least, the 

intent to cause LaCross “to rely upon the falsity of a representation such that [he] is 

induced to act or to refrain from acting.” See Martinez, 6 S.W.3d at 678. In particular, a 

juror could have reasonably inferred from this evidence that Schroeder identified herself 

as McCullough in order to induce LaCross to refrain from further investigating Schroeder 

or from citing her for an offense.

Schroeder additionally contends that McCullough was not harmed because 

“[t]here is no evidence in the record of any citation, arrest, or warrant in McCullough’s 

name as a result of LaCross’s traffic stop.” That may be true, but actual harm upon the 

person whose identifying information was fraudulently used is not an element of the 
13

offense. See TEX. PENAL CODE ANN. § 32.51(b). In any event, there is evidence that 

McCullough was actually harmed. When McCullough was asked whether she had been 

“harmed in any financial way or lost any money over this deal,” she replied: “Yes, I 

have. . . . I have a bank account that is now closed. I have child support money that has 

been missing.” When McLelland was asked whether McCullough had been harmed or 

defrauded, he stated that, because of Schroeder’s fraudulent identification as 

McCullough, “[McCullough’s] name was listed in the police report when it should not have 

been.” The fact that McCullough was never arrested or formally charged with a crime as 

a result of Schroeder’s actions does not mean that McCulllough was not harmed, and it 

does not mean Schroeder could not have harbored an intent to harm or defraud another.

Schroeder finally argues by this issue that “[her] conduct does not constitute the 

type of conduct that Section 32.51 prohibits” because “[c]ase law clearly reflects that the 

subject and purpose of Section 32.51 is to prevent identity theft while the subject of 

Section 38.02 is to ensure police officers receive accurate information.” See, e.g., Jones 

v. State, 396 S.W.3d 558, 563 (Tex. Crim. App. 2013). We disagree. As noted, the 

evidence adduced at trial was sufficient to establish the essential elements of the offense 

of fraudulent use or possession of identifying information. On the other hand, the offense 

of failure to identify, defined in penal code section 38.02, would not have been supported 

because there was no evidence that Schroeder was under arrest at the time she provided 

the fraudulent identification. See TEX. PENAL CODE ANN. § 38.02(a) (West, Westlaw 

through 2013 3d C.S.). It is true that the purpose of section 38.02 is to prevent people 

from providing false information to police, see Jones, 396 S.W.3d at 562, and that 

Schroeder is accused of doing exactly that; but the purpose of section 32.51 is to ensure 
14

that people do not have their identities stolen, see id., and Schroeder is accused of doing

exactly that as well. Moreover, the statute under which she was charged and convicted 

states: “If conduct that constitutes an offense under this section also constitutes an 

offense under any other law, the actor may be prosecuted under this section, the other 

law, or both.” TEX. PENAL CODE ANN. § 38.51(e); see Jones, 396 S.W.3d at 562. In light 

of these considerations, we find no reason why section 32.51 would not apply to 

Schroeder’s actions as alleged in the indictment and as proven beyond a reasonable 

doubt at trial.

Schroeder’s first issue is overruled.

2. Enhancement Paragraphs

By her seventh and eighth issues, Schroeder contends that the evidence was 

insufficient to support the jury’s findings as to the two enhancement paragraphs in both 

cause numbers.10 A hypothetically correct jury charge, consistent with the indictment, 

would state that the enhancement paragraphs are true if: (1) prior to the commission of 

the charged offenses, Schroeder was finally convicted of felony criminal mischief in 

Tarrant County Criminal District Court Number 1, cause number 0514862D; and (2) prior 

to the commission of the charged offenses and prior to the commission of the 

aforementioned criminal mischief offense, Schroeder was finally convicted of felony credit 

card abuse in the 204th District Court of Dallas County, cause number F-8772294. See

TEX. PENAL CODE ANN. § 12.425(a) (West, Westlaw through 2013 3d C.S.)11; Young, 14 

 

10 The verdict form in each punishment charge gave the jury only two options: “Both paragraphs 

true” and “Both paragraphs not true.” The jury found both paragraphs true in both cases.

11 Penal code section 12.425, regarding penalties for repeat and habitual felony offenders in statejail felony trials, states:

(a) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) 

that the defendant has previously been finally convicted of two state jail felonies
15

S.W.3d at 750; see also Derichsweiler v. State, 359 S.W.3d 342, 349 (Tex. App.—Fort 

Worth 2012, pet. ref’d) (“Generally, the State must prove enhancement allegations as 

alleged in the indictment.”).

To establish that Schroeder was convicted of prior offenses, the State had to prove 

beyond a reasonable doubt that (1) the prior convictions exist, and (2) Schroeder was the 

defendant in those prior convictions. See Flowers v. State, 220 S.W.3d 919, 921 (Tex. 

Crim. App. 2007). No specific document or mode of proof is required to prove these two 

elements. Id.

While evidence of a certified copy of a final judgment and sentence may be 

a preferred and convenient means, the State may prove both of these 

elements in a number of different ways, including: (1) the defendant’s 

admission or stipulation, (2) testimony by a person who was present when 

the person was convicted of the specified crime and can identify the 

defendant as that person, or (3) documentary proof (such as a judgment) 

that contains sufficient information to establish both the existence of a prior 

conviction and the defendant’s identity as the person convicted.

Id. at 921–22 (footnotes omitted).

[O]rdinarily the proof that is adduced to establish that the defendant on trial 

is one and the same person that is named in an alleged prior criminal 

conviction or convictions closely resembles a jigsaw puzzle. The pieces 

standing alone usually have little meaning. However, when the pieces are 

 

punishable under Section 12.35(a), on conviction the defendant shall be punished 

for a felony of the third degree.

(b) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) 

that the defendant has previously been finally convicted of two felonies other than 

a state jail felony punishable under Section 12.35(a), and the second previous 

felony conviction is for an offense that occurred subsequent to the first previous 

conviction having become final, on conviction the defendant shall be punished for 

a felony of the second degree.

(c) If it is shown on the trial of a state jail felony for which punishment may be 

enhanced under Section 12.35(c) that the defendant has previously been finally 

convicted of a felony other than a state jail felony punishable under Section 

12.35(a), on conviction the defendant shall be punished for a felony of the second 

degree.

TEX. PENAL CODE ANN. § 12.425 (West, Westlaw through 2013 3d C.S.) (emphasis added). The indictments 

and the jury charges allege that Schroeder was twice previously convicted of felonies, but they do not state 

whether or not those felonies were state-jail felonies.
16

fitted together, they usually form the picture of the person who committed 

that alleged prior conviction or convictions.

Human v. State, 749 S.W.2d 832, 835–36 (Tex. Crim. App. 1988) (op. on reh’g).

State’s Exhibits 4 and 5, which were admitted at the punishment phase over 

defense counsel’s objections, constitute the only evidence of prior convictions in the 

instant case.12 Exhibit 4 contains certified copies of a docket sheet, indictment, and 

judgment indicating that “Traci Sheppard Schroeder” was convicted on April 5, 1994 of

third-degree felony criminal mischief in Tarrant County Criminal District Court Number 

One, cause number 0514861D. The docket sheet is partially illegible but “/03/62” appears 

next to the defendant’s name. Exhibit 5 appears to contain six separate documents in 

reverse chronological order. The first document is a judgment, dated July 27, 1990, 

convicting a defendant of third-degree felony credit card abuse and imposing a two-year 

prison term. The copy of the judgment that appears in the record before this Court does 

not contain the defendant’s name. The second document is a complaint, dated July 12, 

1990, alleging that “Traci Leigh Schroeder” was convicted of felony credit card abuse in 

1987 and that she violated conditions of her probation. The third document is an undated

judgment finding “Traci Sheppard Schroeder” guilty of felony credit card abuse, 

sentencing her to five years’ imprisonment, suspending the prison sentence, and placing 

her on probation for five years. The fourth document is a complaint, dated August 11, 

1988, alleging that “Traci Leigh Schroeder” had been previously convicted of felony credit 

 

12 Schroeder contends by her fifth and sixth issues that Exhibits 4 and 5 were inadmissible. 

However, she does not support these issues with citations to authority or record references; accordingly, 

they are waived. See TEX. R. APP. P. 38.1(i). We note that certified copies of a judgment are selfauthenticating under the rules of evidence and are generally admissible at the punishment phase to 

establish prior convictions. See TEX. R. EVID. 902(4); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 

1986) (noting that certified copies of a judgment and sentence, “while admissible, are not normally sufficient 

standing alone to prove” prior convictions).
17

card abuse and that she violated conditions of her probation. The fifth document is a 

signed “Judicial Confession” admitting to the felony credit card abuse allegations. The 

sixth document is an indictment alleging that “Traci Sheppard Schroeder” committed 

felony credit card abuse on or about April 4, 1987. The two complaints for probation 

violations each contained signatures appearing to be that of Schroeder, acknowledging 

receipt of the documents.13

In support of her issues, Schroeder cites Beck v. State, in which the Texas Court 

of Criminal Appeals stated that certified copies of a judgment and sentence “are not 

normally sufficient standing alone to prove” prior convictions, “even if the name on the 

judgment and sentence and in the pen packet is the same as the defendant in trial.” 719 

S.W.2d 205, 210 (Tex. Crim. App. 1986) (citing Daniel v. State, 585 S.W.2d 688 (Tex. 

Crim. App. 1979); Cain v. State, 468 S.W.2d 856 (Tex. Crim. App. 1971); Elizalde v. State, 

507 S.W.2d 749, 752 (Tex. Crim. App. 1970); Vessels v. State, 432 S.W.2d 108 (Tex. 

Crim. App. 1968); Franklin v. State, 227 S.W.2d 814 (Tex. Crim. App. 1950); Phariss v. 

State, 194 S.W.2d 1007, 1007 (Tex. Crim. App. 1946)); see Prihoda v. State, 352 S.W.3d 

796, 808–10 (Tex. App.—San Antonio 2011, pet. ref’d) (finding insufficient evidence to 

support enhancement where only evidence linking appellant to prior conviction was (1) 

his full name on the prior conviction judgment, (2) his signature on that judgment, and (3)

a police officer’s vague response to a single question about a prior DWI); see also

 

13 Exhibit 5 does not contain a certification page or any other indication that the documents therein 

are certified copies of the originals. However, the exhibit does contain a document prepared by a 

representative of the Dallas County Criminal District Attorney’s office, dated April 9, 2013, requesting 

certified copies of “Court Dispositions and Probable Cause Affidavits” in district court cause number F87-

72294. Additionally, as Schroeder concedes on appeal, the prosecutor “specifically referred to the 

certification during publication of the exhibit to the jury” and “defense counsel did not make any different

representation or indicate that it was not certified.” Schroeder’s appellate counsel states that he therefore 

“has no reason to believe that this exhibit was not certified.” Accordingly, we assume for purposes of this 

opinion that the documents contained in Exhibit 5 are certified copies.
18

Flowers, 220 S.W.3d at 925 (Johnson, J., concurring) (noting that “[c]learly, we must not 

depend only on a name or even a name and a birth date” in linking a defendant to prior 

convictions)14; Demers v. State, No. 05-11-01704-CR, 2013 WL 323446, at *3 (Tex. 

App.—Dallas Jan. 29, 2013, no pet.) (not designated for publication) (“[E]ven if the name 

on the judgment is the same as that of the accused at trial, the State must present 

independent evidence that the accused is the same person previously convicted.”);

Hensley v. State, No. 02-13-00190-CR, 2014 WL 1999307, at *4–5 (Tex. App.—Fort 

Worth May 15, 2014, no pet.) (mem. op. per curiam, not designated for publication) 

(finding that fingerprint expert’s testimony regarding documents not admitted into 

evidence was insufficient to link appellant to prior convictions). Instead, “[i]t is incumbent 

on the State to go forward and show by independent evidence that the defendant is the 

person so previously convicted.” Beck, 719 S.W.2d at 210.

The State argues that, based on the “puzzle pieces” contained in Exhibits 4 and 5, 

“the jury could have rationally determined that it was unlikely that someone other than the 

Appellant, with the same name, date of birth, race and gender, was responsible for the 

offenses.” See Flowers, 220 S.W.3d at 923 (“The trier of fact fits the pieces of the jigsaw 

puzzle together and weighs the credibility of each piece.”); Benton v. State, 336 S.W.3d 

 

14 In her concurring opinion in Flowers v. State, Judge Johnson, joined by Judge Price, stated:

Assuring that a sufficient connection exists requires at least two things: 1) enough 

information to establish that the conviction can be connected to its proper owner; and 2) 

the information is sufficiently corroborated. More information makes the connection more 

reliable. Clearly, we must not depend only on a name or even a name and a birth date. 

An inexhaustive list of factors that might be considered includes: full name, date of birth, 

Social Security number, what the prior offense was, the place and date of the prior offense, 

the date of conviction, testimony about the prior conviction from a corrections, parole, or 

probation officer, or the prosecutor of the prior conviction. However the information is 

produced, it must sufficiently connect the defendant to the prior offense.

220 S.W.3d 919, 925 (Tex. Crim. App. 2007) (Johnson, J., concurring).
19

355, 359–60 (Tex. App.—Texarkana 2011, pet. ref’d) (noting that “[g]enerally, a name 

alone is insufficient to connect a defendant to a prior judgment” but that “the name alone 

is not the sole evidence connecting Benton to the prior convictions” and, in any event, “it 

is quite unlikely that another by the name of Courtney Antoine Benton was convicted in 

Harris County, Texas, within the time frames listed in those prior convictions”).

We find that the evidence was insufficient to link Schroeder to the prior convictions. 

We note that it is not enough for the State to prove that it is “unlikely” that someone other 

than Schroeder was convicted of the offenses as evidenced by the exhibits; instead, the 

State must establish beyond a reasonable doubt that Schroeder was convicted of those 

offenses. See Flowers, 220 S.W.3d at 921. Here, none of the documents in either exhibit

contain any identifying characteristics that match those of Schroeder other than her first 

and last names. The judgment of conviction in Exhibit 5 does not even state Schroeder’s 

name. The State contends that Exhibit 4 established that the person convicted of criminal 

mischief also shared Schroeder’s date of birth, but we do not find a full date of birth 

anywhere in the exhibit. More importantly, there was no evidence adduced at either the 

guilt-innocence phase or the punishment phase as to Schroeder’s actual date of birth.15 

Therefore, even if Exhibit 4 clearly showed the date of birth of the person convicted of 

criminal mischief—including month, day, and year—that information could not link 

Schroeder to the offense because the jury could not have known Schroeder’s actual date 

of birth.

16

 Similarly, though the complaints and judicial confession in Exhibit 5 contain the 

 

15 The State did not seek to re-admit evidence from the guilt-innocence phase at the punishment 

phase.

16 The request for certified copies referenced supra note 13, which was prepared by the prosecuting 

attorney’s office, lists the convicted person’s name as “Traci Sheppard Schroeder,” her date of birth as 

“10/03/1962,” her gender as “female,” and her race as “white.” However, as noted, there was no evidence 

before the jury regarding Schroeder’s actual date of birth. And, to whatever extent the request may be 
20

signature of the person convicted of credit card fraud—and even though the signatures

appear to state “Traci Schroeder”—there was no evidence adduced at trial as to 

Schroeder’s actual signature. The signatures therefore merely show that someone 

named “Traci Schroeder” was charged with credit card fraud; they do not link Schroeder 

to the offense beyond the fact that she shares the same first and last names as that of 

the charged person.

Because the only “puzzle piece” linking Schroeder to the convictions is her name, 

the evidence was insufficient to support a finding that both enhancement paragraphs were 

true. See Beck, 719 S.W.2d at 210; Prihoda, 352 S.W.3d at 808–10.

17 We sustain 

Schroeder’s seventh and eighth issues and reverse those portions of the judgments

finding the enhancement paragraphs true.

B. Shackling During Trial

Schroeder argues by her fourth issue that the trial court erred by “requir[ing] [her] 

to wear shackles during trial.”

The appearance of a defendant in shackles before a jury during a trial can violate 

the defendant’s Fifth and Fourteenth Amendment rights to due process. Deck v. Missouri, 

544 U.S. 622, 629–34 (2005) (citing U.S. CONST. amends. V, XIV). Visible shackling 

 

considered “evidence” of the convicted person’s gender and race, we do not believe that such evidence 

establishes any substantial link between the convicted person and Schroeder that was not already 

established by the fact that the two share first and last names, which, as noted, is insufficient by itself to 

support enhancement. See, e.g., Beck, 719 S.W.2d at 210.

17 Flowers and Benton are distinguishable because, in those cases, there was far more than just a 

name to link the appellant with the prior convictions. See Flowers, 220 S.W.3d at 925 (evidence included 

a certified copy of a printout of a conviction which “set out the date of birth, address, social security number, 

and other personal descriptors” of the convicted person; and appellant’s driver’s license record, which 

contained a name, date of birth, address, and personal descriptors matching those contained in the 

conviction printout as well as a picture “which the trial court could use to compare to the person standing

before him”); Benton v. State, 336 S.W.3d 355, 359–60 (Tex. App.—Texarkana 2011, pet. ref‘d) (evidence 

linking appellant to conviction included his name, date of birth, his signature, and the identity of appellant’s 

mother, all of which appeared on the prior felony conviction and matched evidence already before the jury).
21

“undermines the presumption of innocence and related fairness of the factfinding 

process,” “can interfere with the accused’s ability to communicate with his lawyer” and 

“participate in his own defense,” and “affronts the dignity and decorum of judicial 

proceedings that the judge is seeking to uphold.” Id. at 630–31 (quotations and citations

omitted). Accordingly, a defendant has the right to appear at trial unbound by visible 

shackles except “in extreme and exceptional cases, where the safe custody of the 

prisoner and the peace of the tribunal imperatively demand” otherwise. Bell v. State, 415 

S.W.3d 278, 281 (Tex. Crim. App. 2013) (noting that visible shackling is “only justified 

when, in the trial judge’s discretion, it is necessary for a particular defendant in a particular 

proceeding”); see Deck, 544 U.S. at 628 (noting that visible shackling may be justified “in 

a particular instance by essential state interests such as physical security, escape 

prevention, or courtroom decorum”). “[E]ven when exceptional circumstances or a 

manifest need for such restraint exists, the trial judge should make all efforts to prevent 

the jury from seeing the defendant in shackles.” Bell, 415 S.W.3d at 281. It is within the 

discretion of the trial judge as to whether a defendant shall be tried in handcuffs or 

shackles, and we review the trial court’s decision for abuse of that discretion. Long v. 

State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991).

Here, prior to voir dire and outside the presence of the venire, the trial court noted 

that “there’s an issue about leg irons on the defendant. The defendant—the defendant 

has chosen to wear a dress for the trial and she is in leg irons.” Schroeder stated on the 

record that she had no objection to wearing the leg irons in front of the jury. Subsequently, 

after an off-the-record conversation regarding another case and still outside the presence 

of the venire, defense counsel noted that Schroeder “has a bracelet on her arm that’s 
22

apparent to the jury, which the Sheriff says they cannot remove, that indicates that she’s 

in custody.” Counsel stated: “I object to the bracelet being in the view of the jury. I object 

to the bracelets on her legs being in the view of the jury. I object to her wearing pants to 

cover that.” The prosecutor then called a witness to testify—again, outside the presence 

of the venire—regarding a motion to suppress evidence filed by Schroeder. After the 

witness testified, the following exchange took place:

THE COURT: On the record. The defense has now provided the 

defendant with a jacket that is long-sleeved that covers 

her arms, including the band. Also, the defendant has 

been provided long pants that will cover or hide her 

ankle bracelet.

Is there any objection at this point from the defense?

[Defense counsel]: No, Your Honor.

The venire panel was then brought into the courtroom and the State began voir dire. No 

further mention of shackles or bracelets appears in the record.

To preserve an issue for appellate review, a party must (1) present to the trial court 

a timely and specific objection and (2) show that the trial court explicitly or implicitly ruled 

on the objection or that it refused to rule and the party objected to the refusal. TEX. R.

APP. P. 33.1(a). Even issues that implicate a defendant’s constitutional right to a fair trial 

may be waived if not preserved in this manner. See, e.g., Yazdchi v. State, 428 S.W.3d 

831, 844 (Tex. Crim. App. 2014).18 Schroeder initially advised the trial court that she had 

no objection to her manner of appearance before the jury, and her counsel did not object

 

18 Errors affecting “absolute rights” or rights that are “not forfeitable” need not be preserved by 

objection at trial. See, e.g., Garza v. State, 435 S.W.3d 258, 260 (Tex. Crim. App. 2014). However, 

Schroeder directs to no authority, and we find none, establishing that the right to appear unshackled at trial 

is such a right. Instead, case law supports the contrary proposition. See Moughon v. State, 967 S.W.2d 

900, 901 (Tex. App.—Fort Worth 1998, no pet.) (noting that “jurors seeing a defendant wearing handcuffs 

does not constitute egregious error” for which no trial objection is required).
23

at that time. Although her counsel later reversed himself and objected to “the bracelet 

being in the view of the jury,” the record shows that, once his concerns were addressed, 

he withdrew his objection. For these reasons, Schroeder’s fourth issue has not been 

preserved for our review. See TEX. R. APP. P. 33.1(a); Cedillos v. State, 250 S.W.3d 145, 

150 (Tex. App.—Eastland 2008, no pet.) (concluding that appellant waived his 

constitutional due process complaint regarding shackling during trial because he failed to 

object on the record); see also Kelley v. State, No. 05-09-01438-CR, 2012 WL 2628074, 

at *5–6 (Tex. App.—Dallas July 6, 2012, pet. ref’d) (mem. op., not designated for 

publication) (same); Pereida v. State, No. 13-09-00354-CR, 2010 WL 2783743, at *6 

(Tex. App.—Corpus Christi July 15, 2010, pet. ref’d) (mem. op., not designated for 

publication) (same).

Even if the issue were preserved, any error would be harmless because there is 

no evidence in the record that the jury was ever aware of the shackles or bracelets. See

TEX. R. APP. P. 44.2(b) (stating that any non-constitutional error “that does not affect 

substantial rights must be disregarded”); Bell, 415 S.W.3d at 283 (holding that error in 

ordering appellant to be shackled during trial was harmless under Rule 44.2(b) because 

there was no “reasonable probability that the jury was aware of the defendant’s 

shackles”); see also Canales v. State, 98 S.W.3d 690, 697–98 (Tex. Crim. App. 2003)

(holding that any error in allowing appellant to be shackled during trial would be harmless 

because “[n]othing in the record indicates that the jury ever saw or heard or was otherwise 

aware that appellant was wearing shackles”); Cooks v. State, 844 S.W.2d 697, 722–23 

(Tex. Crim. App. 1992) (same where there was no evidence that the “shackles were 

actually seen by the jury”). The record instead shows that, prior to the entrance of the 
24

venire panel into the courtroom, Schroeder was provided with attire that concealed the 

shackles and bracelets on her arms and legs.

We overrule Schroeder’s fourth issue.

C. Jury Charge Error

By her second issue, Schroeder contends that the trial court erred by refusing her 

request to include the statutory definition of “harm” in the jury charge pertaining to the 

fraudulent identification allegations because “intent to harm or defraud” is an essential 

element of the offense. See TEX. PENAL CODE ANN. § 32.51(b). At the charge conference, 

defense counsel requested that the jury be instructed on the definition of “harm” contained 

in penal code section 1.07. See TEX. PENAL CODE ANN. § 1.07(a)(25) (“‘Harm’ means 

anything reasonably regarded as loss, disadvantage, or injury, including harm to another 

person in whose welfare the person affected is interested.”). The trial court denied the 

request, stating that she “does not believe” that the section 1.07 definition “applies in this 

case.”

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 

(West, Westlaw through 2013 3d C.S.). 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. 
25

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). But a trial court has no discretion in determining what the law is or applying 

the law to the facts. State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004).

We assume, for purposes of this analysis, that the trial court’s refusal to instruct 

the jury on the statutory definition of “harm” was error.

19

 Because defense counsel 

properly requested the instruction at trial, the error will be reversible only if we find that it 

resulted in at least “some harm” to Schroeder’s rights. Almanza v. State, 686 S.W.2d 

157, 171 (Tex. Crim. App. 1984) (op. on reh’g); see Dickey v. State, 22 S.W.3d 490, 492 

(Tex. Crim. App. 1999). It is Schroeder’s burden to prove that she “suffered some actual, 

rather than merely theoretical, harm from the error.” Dickey, 22 S.W.3d at 492. 

“Nevertheless, the presence of any harm, regardless of degree, is sufficient to require a 

reversal of the conviction.” Id.

Schroeder contends on appeal that she suffered harm from the exclusion of her 

requested definition because “this Court cannot be certain that the jury considered the 

proper standard of ‘harm’ during its deliberations”; because “[t]he intent element of the 

charged offense was a highly disputed issue”; and because “[t]here is no evidence in the 

record that would lead a jury to reasonably conclude that [Schroeder] possessed the 

requisite intent to cause a loss, disadvantage, or injury to the officer or the complaining 

witness as a result of her actions during the traffic stop.”

 

19 We note that the definitions provided in section 1.07 are applicable to the entire penal code. TEX.

PENAL CODE ANN. § 1.07(a) (West, Westlaw through 2013 3d C.S.).
26

We disagree. We have already concluded that the evidence was sufficient to 

establish Schroeder’s culpable intent under a hypothetically correct jury charge. Further, 

although the intent element was indeed hotly disputed, the exclusion of Schroeder’s 

requested instruction could not have feasibly worked to her detriment because, when a 

term is left undefined, the jury is assumed to have considered the “commonly understood 

meaning” of the term. See Olveda v. State, 650 S.W.2d 408, 409 (Tex. Crim. App. 1983). 

In Olveda, a robbery case, the Texas Court of Criminal Appeals concluded that the 

omission from the jury charge of the statutory definition of “in the course of committing 

theft” was harmless error. Id. at 408–09. The Court reasoned:

[W]hen the statutory definition[

20] is not included in the charge, it is assumed 

the jury would consider the commonly understood meaning in its 

deliberations. Although error could result where the common meaning is 

more expansive than the statutory definition, such is not the case with the 

phrase “in the course of committing theft.” Any possible misunderstanding 

of the phrase would have been more restrictive than the statutory definition, 

and could only have been to appellant’s benefit. No reversible error is 

shown.

Id. at 409. In Nejnaoui v. State, the Fourteenth Court of Appeals held, in an aggravated 

assault case, that the reasoning in Olveda applies to the statutory definition of “conduct.”

44 S.W.3d 111, 120 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). The statutory 

definition of “conduct” is “an act or omission and its accompanying mental state,” id. (citing 

TEX. PENAL CODE ANN. § 1.07(a)(10)); whereas the common meaning of the term is “the 

act, manner, or process of carrying on . . . a mode or standard of personal behavior 

esp[ecially] as based on moral principles.” Id. (citing WEBSTER’S NEW COLLEGIATE 

DICTIONARY 235 (1977 ed.)). The Nejnaoui court held that “[t]he statutory definition of 

 

20 The statutory definition of “in the course of committing theft” is “conduct that occurs in an attempt 

to commit, during the commission, or in immediate flight after the attempt or commission of theft.” Id.

§ 29.01(1) (West, Westlaw through 2013 3d C.S.).
27

conduct is ‘neither complex nor unusual, and the definition is much like the common 

meaning of the word.’” Id. (quoting Smith v. State, 959 S.W.2d 1, 25 (Tex. App.—Waco 

1997, pet. ref’d)).

We believe that the reasoning in Olveda also applies here. The common, 

dictionary definition of “harm” is “physical or mental damage or injury.” Merriam-Webster 

Online Dictionary, http://www.merriam-webster.com/dictionary/harm (last visited Apr. 7, 

2015). As in Olveda and Nejnaoui, the common definition of the term at issue is more 

restrictive than the statutory definition. See Olveda, 650 S.W.2d at 409; Nejnaoui, 44 

S.W.3d at 120.21 As noted, the common definition states that “harm” must be “physical 

or mental” in nature, whereas under the statutory definition “harm” may be “anything

reasonably regarded as loss, disadvantage, or injury. . . .” TEX. PENAL CODE ANN.

§ 1.07(a)(25) (emphasis added). The common, dictionary definition of “harm” is more 

restrictive because it does not include injuries that are not physical or mental in nature—

such as, for example, pecuniary loss. Accordingly, to the extent the jury used the common 

definition of “harm” rather than the statutory definition, that could only have redounded to 

Schroeder’s benefit because it would have limited the circumstances under which the jury 

could have found her guilty. See Olveda, 650 S.W.2d at 409.

We conclude that Schroeder did not meet her burden to establish that she suffered 

at least some “actual harm” from the trial court’s refusal to include her requested definition 

 

21 The Nejnaoui court did not explicitly state that the common definition of “conduct” is more 

restrictive than the statutory definition. However, that conclusion is supported by that court’s analysis. In 

particular, as the court noted, the statutory definition of “conduct” includes an act and its accompanying 

mental state, whereas the common definition merely refers to an “act, manner or process” of behavior. 

Nejnaoui v. State, 44 S.W.3d 111, 120 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
28

in the jury charge. See Dickey, 22 S.W.3d at 492; Almanza, 686 S.W.2d at 171. Her 

second issue is overruled.

D. Admission of Drug Evidence

By her third issue, Schroeder contends that the trial court erred by admitting 

evidence of the methamphetamine obtained from under the battery of a mobile phone 

that LaCross found in her purse. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West, 

Westlaw through 2013 3d C.S.) (“No evidence obtained by an officer or other person in 

violation of any provisions of the Constitution or laws of the State of Texas, or of the 

Constitution or laws of the United States of America, shall be admitted in evidence against 

the accused on the trial of any criminal case.”). We review the admission of evidence 

under an abuse of discretion standard. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. 

Crim. App. 2007).

1. Applicable Law

The Fourth Amendment to the United States Constitution provides that “[t]he right 

of the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated . . . .” U.S. CONST. amend. IV. 

Warrantless searches “are per se unreasonable under the Fourth Amendment—subject 

only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 

556 U.S. 332, 338 (2009). Among the exceptions to the warrant requirement is a search 

incident to a lawful arrest. Id.

The justification for permitting [a warrantless search incident to arrest] is (1) 

the need for officers to seize weapons or other things which might be used 

to assault [a]n officer or effect an escape, and (2) the need to prevent the 

loss or destruction of evidence. A search is incident to arrest only if it is 

“substantially contemporaneous” with the arrest and is confined to the area 

within the immediate control of the arrestee. Thus, a search incident to 
29

arrest cannot normally be justified if the search is remote in time or place 

from the arrest or no exigency exists.

State v. Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014) (internal quotations 

omitted) (citing United States v. Chadwick, 433 U.S. 1, 15 (1977); United States v. 

Robinson, 414 U.S. 218, 224–26 (1973); Vale v. Louisiana, 399 U.S. 30, 33 (1970)).

2. Suppression Hearing

At a pre-trial hearing on Schroeder’s motion to suppress the drug evidence, 

LaCross testified that he stopped Avina’s car on September 13, 201222 because the driver

“[f]ailed to signal a turn.” LaCross obtained Avina’s identification and then asked 

Schroeder if she had any identification. She did not. At that point, LaCross “got her out 

and placed her under arrest” pursuant to the warrant that had been issued for her arrest. 

LaCross asked Schroeder to put her purse back in the vehicle “[s]o that she didn’t have 

anything in her hands when I placed her under arrest.” Avina then gave LaCross consent 

to search the vehicle. LaCross found no evidence of criminal activity in his search of the 

vehicle. He “gathered [Schroeder]’s personal property”—i.e., her purse—“and took her 

to jail.” LaCross clarified that when he “got the purse,” Schroeder asked LaCross if he 

would leave the purse with Avina. LaCross refused to do so because “she had been 

arrested for a warrant for stuff dealing with identity theft, and there’s a possibility that other

items could be related to that crime in her purse.” LaCross stated that it is “typical” for 

him to take an arrestee’s personal property, whether or not he believes the property is 

related to the offense.

 

22 LaCross initially stated the traffic stop occurred on September 12. Later, after being shown his 

police report to refresh his memory, he corrected his testimony.
30

When LaCross arrived at the jail with Schroeder, he followed his “standard 

procedure,” which he described as follows: “Separate the property that they have 

between the stuff that would be concealed in a bag and the stuff that they could have 

access to, like money, credit cards, cellphone, search the property, make sure there's no 

contraband so that isn’t going to the jail.” He stated: “She had two cellphones [in the 

purse], one without a battery, one with a battery, and I took off the back, and behind the 

battery was a small amount of methamphetamine.” On cross-examination, LaCross 

agreed with defense counsel that his intent, at the time he took the purse, was to search 

the purse for “further evidence of the warrant that I was arresting her for.” When asked 

whether he had “reasonable suspicion or probable cause to believe that there was 

evidence in the purse associated with her arrest,” LaCross replied: “Yes. She had—she 

had already lied to me. She had possession of ID the first time I talked to her that wasn’t 

hers.[

23] So all those things gave me reason to believe that there could have been 

evidence of this crime.”

The trial court denied the motion to suppress. In pronouncing its ruling, the trial 

court stated:

The Court having listened to the testimony presented by the witness, the 

Court is in agreement with the State. Gant does have a two-prong test. The 

first, which has to do with officer safety, and certainly if the defendant was 

in the car [sic] of the police department, that addresses that issue.

However, it also—the second prong has to do with evidence at the crime 

that could have been destroyed that was with the defendant. And, clearly, 

her purse could contain evidence of the crimes, specifically, the ID that she 

had presented earlier, or any other identification that she might have had in 

her purse.

 

23 This testimony contradicts LaCross’s testimony given later at trial that Schroeder was not able to 

produce identification at the September 10 traffic stop.
31

And for that reason, the Court is going to allow—is going to deny your 

Motion to Suppress and allow the State to present that evidence.

3. Analysis

Schroeder argues that the search was unreasonable because “it was not 

substantially contemporaneous with the arrest and the justifications for a search incident 

to arrest were no longer present.” She notes that “[t]he purpose of a search incident to 

arrest is to seize weapons that could be used against the police officer and to prevent the 

destruction of evidence of the crime” but that, at the time of the search, she “no longer 

had possession of the purse and could not have easily accessed it to retrieve any weapon 

or destroy any evidence.”

Schroeder relies on Gant, where the appellant was arrested for driving with a 

suspended license, handcuffed, and locked in the back of a patrol car. 556 U.S. at 335. 

Police then searched the appellant’s car and discovered his jacket, which contained 

cocaine. Id. The United States Supreme Court stated:

In Chimel [v. California, 395 U.S. 752, 763 (1969)], we held that a search 

incident to arrest may only include “the arrestee’s person and the area 

‘within his immediate control’—construing that phrase to mean the area 

from within which he might gain possession of a weapon or destructible 

evidence.” Ibid. That limitation, which continues to define the boundaries 

of the exception, ensures that the scope of a search incident to arrest is 

commensurate with its purposes of protecting arresting officers and 

safeguarding any evidence of the offense of arrest that an arrestee might 

conceal or destroy. See ibid. (noting that searches incident to arrest are 

reasonable “in order to remove any weapons [the arrestee] might seek to 

use” and “in order to prevent [the] concealment or destruction” of evidence 

(emphasis added)). If there is no possibility that an arrestee could reach 

into the area that law enforcement officers seek to search, both justifications 

for the search-incident-to-arrest exception are absent and the rule does not 

apply.

Gant, 556 U.S. at 339. The Court concluded that the warrantless search in that case was 

unreasonable because (1) the appellant “could not have accessed his vehicle at the time 
32

of the search,” and (2) appellant “was arrested for driving with a suspended license—an 

offense for which police could not expect to find evidence in the passenger compartment 

of [appellant]’s car.” Id. at 343–44 (noting that “circumstances unique to the vehicle 

context justify a search incident to a lawful arrest when it is reasonable to believe evidence 

relevant to the crime of arrest might be found in the vehicle”) (quotations omitted). The 

Court therefore concluded that “[n]either the possibility of access nor the likelihood of 

discovering offense-related evidence authorized the search in this case.” Id. at 344.

The State argues Gant is inapplicable, citing case law establishing that police are 

entitled to search a suspect’s personal effects, including a purse, as part of a search 

incident to a lawful arrest. In Stewart v. State, the appellant was arrested after she was 

observed shoplifting. 611 S.W.2d 434, 435 (Tex. Crim. App. [Panel Op.] 1981). After the 

officer took the appellant to the police station to be booked for theft, another officer noticed 

appellant’s nose was running, a condition which he knew commonly resulted from cocaine 

use. See id. There was also evidence that appellant had stated “she needed to thieve 

because a dope deal was going on.” Id. The officer took appellant’s purse and found a 

prescription bottle containing cocaine. Id. A panel of the Texas Court of Criminal Appeals 

held that the search was valid, noting that “[a] search incident to . . . lawful arrest requires 

no warrant if it is restricted to a search of the person or of objects immediately associated 

with the person of the arrestee.” Id. at 436 (emphasis added) (citing Robinson, 414 U.S. 

218). The Court held that a purse is an item “immediately associated with a person” 

because it is typically “carried with a person at all times” “in the sense that a wallet or 

items found in pockets are.” Id. at 438. The Court distinguished purses from other items 

which courts have held were not properly part of a “full search of the person,” such as
33

briefcases, attaché cases, guitar cases, sealed cardboard boxes, unlocked backpacks 

and duffel bags. Id. at 437 (listing cases); see United States v. Lee, 501 F.2d 890, 892 

(D.C. Cir. 1974) (holding that, because officers had probable cause to arrest, they were 

entitled to “search [appellant’s] purse incident thereto”).

We find that the search was reasonable. Having lawfully arrested Schroeder, 

LaCross was entitled to search her “personal effects,” including her purse.24 See Stewart, 

 

24 As noted, the evidence which Schroeder sought to suppress was not only found within her purse, 

but—more specifically—was found underneath the battery of a cell phone that was in the purse. Under the 

applicable case law, LaCross was entitled to search the purse incident to his arrest of Schroeder; but the 

question of whether LaCross was also entitled to pry open the battery compartment of the phone to search 

for evidence is an entirely different matter. In this regard, it is noteworthy that both the United States 

Supreme Court and the Texas Court of Criminal Appeals have recently concluded that the data contained 

within an arrestee’s cell phone is not properly within the scope of a search incident to arrest. See Riley v. 

California, 134 S.Ct. 2473, 2495 (U.S. 2014) (“Our answer to the question of what police must do before 

searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”); State v. 

Granville, 423 S.W.3d 399, 417 (Tex. Crim. App. 2014) (noting that “a cell phone is not like a pair of pants 

or a shoe . . . . [A] citizen does not lose his reasonable expectation of privacy in the contents of his cell 

phone merely because that cell phone is being stored in a jail property room” and concluding that the officer 

“could have seized appellant’s phone and held it while he sought a search warrant, but, even with probable 

cause, he could not ‘activate and search the contents of an inventoried cellular phone’ without one”).

Nevertheless, as the State notes, Schroeder did not argue to the trial court that LaCross’s search 

was unreasonable because it extended to the contents of her cell phone. Instead, defense counsel raised 

only the following grounds at the suppression hearing:

In this particular case, Your Honor, Arizona versus Gant, I believe, is the controlling law 

that covers this particular situation.

She was arrested on a warrant that the officer knew about, stopped the vehicle, arrested 

her, took her out of the vehicle, put her in the back of his patrol car in handcuffs, secured 

her so that she couldn’t get out and closed the door. He says that the driver gave him 

permission to search the vehicle, but not the purse.

Under Gant, he is not allowed to search the purse as an incident to the arrest, which is 

what he testified that he did. He searched the purse incidental to the arrest. Gant doesn’t 

allow that to happen. He can’t take the purse and deprive her of her right to give it to the 

custody of someone else for safekeeping so that he can then take it to jail and search it.

If Gant doesn’t authorize him to search the purse at the scene with her handcuffed and 

secured in the back of his patrol car, certainly Gant doesn’t allow him to then take the purse 

somewhere else and search it.

I would ask the Court to suppress the evidence found in that purse as an unlawful search 

under the Fourth Amendment.

To the extent Schroeder argues on appeal that the battery compartment of an arrestee’s cell phone is not 

properly within the scope of a search incident to arrest, we conclude that issue has not been preserved 

because it was never presented to the trial court; therefore, we do not address it. See TEX. R. APP. P. 33.1.
34

611 S.W.2d at 438; Lee, 501 F.2d at 892; see also Robinson, 414 U.S. at 224–26. 

Schroeder notes that the trial court based its ruling partly on the likelihood that “her purse 

could contain evidence of the crimes, specifically, the ID that she had presented earlier”; 

and she is correct that, despite LaCross’s testimony at the suppression hearing, the 

evidence at trial established that Schroeder in fact never produced a physical 

identification card of any sort. However, the trial court also based its ruling on the 

possibility that the purse might contain “any other identification that she might have had.” 

Here, because Schroeder was charged with fraudulently using identifying information, 

evidence of the crime would have included anything in Schroeder’s purse that established 

her true identity. Therefore, even disregarding LaCross’s dubious testimony that 

Schroeder “had possession of ID the first time I talked to her that wasn’t hers,” it was still

reasonable for LaCross to suspect that Schroeder’s purse contained evidence of the 

crime for which she was arrested. Gant is distinguishable for that reason. Cf. Gant, 556 

U.S. at 344 (holding that “police could not reasonably have believed . . . that evidence of 

the offense for which [appellant] was arrested might have been found” in his car).

Schroeder further contends that the search, which took place after LaCross had 

transported her to jail, was unreasonable because it was not “substantially 

contemporaneous with the arrest.” See Granville, 423 S.W.3d at 410. We disagree. The 

court of criminal appeals has held:

Searches incident to arrest are not limited as a matter of law to those made 

at the instant a suspect is taken into police custody. Rather, the legal basis 

for concluding that such searches are reasonable within the meaning of the 

state and federal constitutions, i.e. to discover weapons, evidence, and 

contraband, is ordinarily applicable during the entire interval following arrest 

and leading ultimately either to detention of the suspect or to his release on 

bail pending formal accusation and trial. During this period, detainees suffer 

a diminished expectation of privacy. When booked into a detention facility, 
35

they may be thoroughly searched without a warrant to make an inventory of 

their belongings.

Rogers v. State, 774 S.W.2d 247, 264 (Tex. Crim. App. 1989) (finding that search of 

appellant’s sock after he was lawfully arrested and taken to the sheriff’s office was valid

because “appellant was still in custody of the arresting officers”), overruled on other 

grounds by Peek v. State, 106 S.W.3d 72 (Tex. Crim. App. 2003). The United States

Supreme Court and federal appeals courts have also held that a search incident to arrest 

need not immediately follow the arrest, but instead “may legally be conducted later when 

the accused arrives at the place of detention.” United States v. Edwards, 415 U.S. 800, 

803, 803 n.4 (1974) (noting that “[t]he courts of appeals have followed this same rule, 

holding that both the person and the property in his immediate possession may be 

searched at the station house after the arrest has occurred at another place and if 

evidence of crime is discovered, it may be seized and admitted in evidence” and collecting 

cases); Abel v. United States, 362 U.S. 217, 239 (1960); United States v. Curtis, 635 F.3d 

704, 712 (5th Cir. 2011); United States v. Hambrick, 630 F.3d 742, 748 (8th Cir. 2011). 

The Edwards Court stated:

[O]nce the accused is lawfully arrested and is in custody, the effects in his 

possession at the place of detention that were subject to search at the time 

and place of his arrest may lawfully be searched and seized without a 

warrant even though a substantial period of time has elapsed between the 

arrest and subsequent administrative processing, on the one hand, and the 

taking of the property for use as evidence, on the other.

Edwards, 415 U.S. at 807. Here, LaCross explained that he searched the purse at the 

jail instead of at the scene of the traffic stop because “I would rather search it in a well-lit 

area that has a table that I can set things down on as opposed to inside of a vehicle or on 

the hood of a squad car.” This was permissible under Edwards and Rogers. See id.

(noting that “it is difficult to perceive what is unreasonable about the police’s examining 
36

and holding as evidence those personal effects of the accused that they already have in 

their lawful custody as the result of a lawful arrest”); Abel, 362 U.S. at 239; Curtis, 635 

F.3d at 712; Hambrick, 630 F.3d at 748; Rogers, 774 S.W.2d at 264.

For the foregoing reasons, the trial court did not err in denying Schroeder’s motion 

to suppress the drug evidence. We overrule her third issue.

E. Reformation of Judgments

Schroeder’s ninth through twelfth issues contend that the judgments on appeal 

should be reformed to correct two clerical errors: (1) the judgments both incorrectly state 

that she pleaded “true” to the two enhancement paragraphs, and (2) the judgments both 

incorrectly state that the offenses for which Schroeder was convicted are third-degree 

felonies.

The State concedes error. The record substantiates Schroeder’s claim that she 

pleaded “not true” to the enhancement paragraphs; and it clearly reflects that she was 

charged with, tried for, and convicted of state-jail felonies, not third-degree felonies. In 

particular, the indictments alleged and the proof established that Schroeder used fewer 

than five items of identifying information, see TEX. PENAL CODE ANN. § 32.51(c)(1)

(providing that the offense of fraudulent use or possession of identifying information is “a 

state jail felony if the number of items obtained, possessed, transferred, or used is less 

than five”), and that she possessed less than one gram of methamphetamine. See TEX.

HEALTH & SAFETY CODE ANN. § 481.115(b) (providing that the offense of possession of a 

Penalty Group 1 controlled substance “is a state jail felony if the amount of the controlled 

substance possessed is, by aggregate weight, including adulterants or dilutants, less than 

one gram”).
37

We sustain the issues and modify the judgments to reflect that Schroeder pleaded 

“not true” to the two enhancement paragraphs in each case and that the two offenses for 

which she was convicted are state-jail felonies. See TEX. R. APP. P. 43.2(b).

III. CONCLUSION

Because we have found insufficient evidence to support the jury’s findings as to 

the enhancement paragraphs, we reverse the punishments assessed pursuant to those 

findings and remand to the trial court for a new punishment trial consistent with this 

opinion. See TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (West, Westlaw through 2013 3d 

C.S.); Jordan v. State, 256 S.W.3d 286, 292 (Tex. Crim. App. 2008).

25 The judgments 

are in all other respects affirmed as modified herein.

DORI CONTRERAS GARZA,

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

9th day of April, 2015.

 

25 Schroeder asks, if we find the evidence to be insufficient to support enhancement, that we

“remand the cause for a new punishment hearing within the proper range of punishment for a state jail 

felony.” We decline to provide such specific instructions, however, because it is possible that the State 

may produce additional evidence at the new punishment trial that would be sufficient to establish the truth 

of the enhancement paragraphs. See Jordan v. State, 256 S.W.3d 286, 292 (Tex. Crim. App. 2008) (“When 

a reviewing court determines that the State’s evidence fails to show that an enhancement allegation is true, 

the Double Jeopardy Clause does not bar the use of the enhancement conviction during a retrial on 

punishment.”) (citing Monge v. California, 524 U.S. 721, 734 (1998)).