Opinion filed June 13, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00184-CR

__________

TODD WILLIAM BARR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 24291A

M E M O R A N D U M O P I N I O N

The jury convicted Todd William Barr of theft enhanced by two prior theft 

offenses and assessed his punishment at confinement in the Institutional Division 

of the Texas Department of Criminal Justice for a term of five years. See TEX.
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PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp. 2012). Appellant challenges his 

conviction in a single issue. We affirm. 

Background Facts

Charles Ariel Meyer was the loss prevention manager at Sears at the Mall of 

Abilene. He observed a woman on the store’s security camera system filling a 

shopping cart with men’s clothing. Meyer believed that the woman was going to 

steal the items because she was not looking at the price tags on the items. He 

moved to a location near her inside the store while another loss prevention 

employee continued to observe the woman over the security camera system. The 

woman pushed the cart of merchandise through the first set of doors to the store 

without paying for them. She then left the cart in the vestibule area separating the 

two sets of doors to the store and entered a car parked next to the curb. Meyer then 

observed Appellant exit the car, enter the outside set of doors, and retrieve the cart 

of merchandise. 

Appellant took the cart out to the car and placed the merchandise in the car’s 

trunk. Meyer confronted Appellant at this point and asked him to return to the 

store. Appellant refused Meyer’s request and attempted to flee in the car. He was 

unable to do so, however, because Meyer began pursuing him on foot. Meyer 

eventually chased Appellant to an apartment complex at which time officers from 

the Abilene Police Department arrived to detain Appellant. When the officers 

returned to the store, neither the woman nor the car remained there. None of the 

items taken from the store were recovered.

Analysis

In a single issue, Appellant contends that a variance exists between the 

offense alleged in the indictment and the evidence offered at trial with respect to 

the description of the stolen property. He initially frames his contention as a 
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challenge to the sufficiency of the evidence. However, he also asserts jury charge 

error and ineffective assistance of counsel within his single issue on appeal.

We review a sufficiency of the evidence issue, regardless of whether it is 

denominated as a legal or factual claim, under the standard of review set forth in 

Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 

(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—

Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the 

evidence in the light most favorable to the verdict and determine whether any 

rational trier of fact could have found the elements of the offense beyond a 

reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 

(Tex. Crim. App. 2010). In conducting a sufficiency review, we defer to the jury’s 

role as the sole judge of the witnesses’ credibility and the weight their testimony is 

to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the 

factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to 

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 

319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the 

record supports conflicting inferences, we presume that the factfinder resolved the 

conflicts in favor of the prosecution and defer to that determination. Jackson, 443 

U.S. at 326; Clayton, 235 S.W.3d at 778.

A variance occurs whenever there is a discrepancy between the allegations 

in the indictment and the proof offered at trial. Byrd v. State, 336 S.W.3d 242, 246 

(Tex. Crim. App. 2011). In some instances, a variance between the pleading and 

proof can render the evidence legally insufficient to support a conviction. See 

Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012). A variance that 

amounts to a failure to prove the offense alleged will not be tolerated. Id. at 295; 

Byrd, 336 S.W.3d at 246–48. 
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The indictment charged Appellant with stealing the following described 

property: “CLOTHING, the type and kind is unknown, of the value of less than 

fifteen hundred dollars.” Appellant argues that the evidence offered at trial 

established that the type and kind of clothing taken was actually known. Meyer 

testified that he and another employee reviewed the surveillance video in an effort 

to determine what items were taken. He testified that they prepared a list of items 

that they were “completely sure” Appellant and the lady took from the store. 

Meyer stated that the value of the items on the list totaled $850 without tax. He 

further testified that they “err[ed] on the side of caution” to omit items that they 

“weren’t absolutely sure” about. Meyer concluded by saying that he and the other 

employee were not certain of everything that Appellant and the lady took from the 

store.

The court in Roberson v. State, 741 S.W.2d 563 (Tex. App.—Texarkana 

1987, no pet.), addressed an analogous situation. The indictment charged the 

defendant with stealing “merchandise the exact name and number and kind of 

which is unknown to the Grand Jury.” 741 S.W.2d at 565. The defendant asserted 

that a variance existed because the evidence offered at trial showed that “cash, 

beer, and ‘other stuff’ was stolen” thereby disproving that the alleged stolen 

property was unknown. Id. (emphasis added). The court of appeals rejected this 

contention on the basis that the evidence did not reveal the exact nature of the 

“other stuff.” Id.

The holding in Roberson is applicable to the facts in this case. As noted

previously, the items that Appellant took from the store were never recovered. 

While Meyer was able to identify some items from the video, he was not able to 

identify all of the items that Appellant took. Thus, the evidence offered at trial 

established the State’s allegation that Appellant stole unknown items of clothing. 

Accordingly, there was no variance because evidence offered at trial supported the 
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property description alleged in the indictment. Furthermore, the evidence offered 

at trial was not insufficient because it did not show an entirely different offense

than what was alleged in the charging instrument. See Johnson, 364 S.W.3d at 

295; Byrd, 336 S.W.3d at 246–47.

Relying upon his variance argument, Appellant also contends that the jury 

charge was erroneous because it contained the same allegation that the stolen 

clothing was unknown. He asserts that trial counsel was ineffective for failing to 

object to this portion of the charge. Our determination that a variance did not 

occur is dispositive of both of these contentions. The trial court did not err in 

charging the jury with the same property description contained in the indictment 

because it was supported by the evidence. Additionally, trial counsel was not 

ineffective for failing to object to the property description. See Ex parte White, 

160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (Trial counsel is not ineffective for 

failing to make futile objections.). Appellant’s sole issue is overruled.

This Court’s Ruling

We affirm the judgment of the trial court. 

TERRY McCALL

JUSTICE

June 13, 2013

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.