ORAL ARGUMENT WAIVED

CAUSE NO. 06-14-00172-CR

IN THE

COURT OF APPEALS

SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA

____________________________________________________________

GERALD MAC LOWREY, Appellant

V.

THE STATE OF TEXAS, Appellee

____________________________________________________________

ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT

LAMAR COUNTY, TEXAS

TRIAL COURT NO. 25492; HONORABLE WILL BIARD, JUDGE

____________________________________________________________

APPELLEE’S (STATE’S) BRIEF ____________________________________________________________

Gary D. Young, County and District Attorney

Lamar County and District Attorney’s Office

Lamar County Courthouse

119 North Main

Paris, Texas 75460

(903) 737-2470

(903) 737-2455 (fax)

ATTORNEYS FOR THE STATE OF TEXAS

ACCEPTED

06-14-00172-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

5/6/2015 11:03:02 AM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 5/6/2015 11:03:02 AM DEBBIE AUTREY Clerk
-iIDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and

counsel is not required to supplement or correct the appellant’s list.
-iiTABLE OF CONTENTS

PAGE NO.:

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . viii

ISSUE PRESENTED IN REPLY. . . . . . . . . . . . . . . . . . . . . . . ix

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT AND AUTHORITIES

ISSUE/POINT OF ERROR PRESENTED IN REPLY 

NO. 1: THE TRIAL COURT DID NOT ABUSE ITS

DISCRETION IN DENYING THE WRIT OF 

ATTACHMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ISSUE/POINT OF ERROR PRESENTED IN REPLY

NO. 2: THE TRIAL COURT DID NOT ABUSE ITS

DISCRETION IN DENYING THE MOTION FOR

CONTINUANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
-iiiPAGE NO:

ISSUE/POINT OF ERROR PRESENTED IN REPLY 

NO. 3: THE EVIDENCE WAS LEGALLY-SUFFICIENT 

FOR THE JURY, AS A RATIONAL FACT FINDER, TO 

FIND THAT “JOE TEX EXPRESS” WAS THE SPECIFIC

OWNER OF THE PROPERTY. . . . . . . . . . . . . . . . . . 22

ISSUE/POINT OF ERROR PRESENTED IN REPLY 

NO. 4: THE ALLEGED VARIANCE, IF ANY, 

(BETWEEN THE NAME OF THE SPECIFIC OWNER

ALLEGED AND THE NAME PROVED) WAS IMMATERIAL,

AND NOT FATAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

PRAYER . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 31

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . 32

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . 32
-ivINDEX OF AUTHORITIES

CASES: PAGE NO:

Boyette v. State, 632 S.W.3d 915, 916, 917 (Tex. App.--Houston 

[14th Dist.] 1982, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . 28, 29, 30

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. 

App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Byrd v. State, 336 S.W.3d 242, 251, n. 48, 252, 253 (Tex. Crim. 

App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26, 28

Cada v. State, 334 S.W.3d 766, 776 (Tex. Crim. 

App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 

Clark v. State, 305 S.W.3d 351, 355 (Tex. App.--Houston [14th

Dist.] 2010) aff’d, 365 S.W.3d 333 (Tex. Crim. 

App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,18

Coleman v. State, 966 S.W.2d 525, 527-28 (Tex. Crim. 

App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Castillo v. State, 901 S.W.2d 550, 553 (Tex. App.--El Paso 

1995, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. 

App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Driggers v. State, 155 Tex. Crim. 475, 477, 236 S.W.2d 497, 

498 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19

Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.--Fort Worth 

2006, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 18
-vCASES: PAGE NO:

Freeman v. State, 707 S.W.2d 597, 602-03 (Tex. Crim. 

App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Geick v. State, 349 S.W.3d 542, 545 (Tex. Crim. 

App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Gentry v. State, 770 S.W.2d 780, 786, 787 (Tex. Crim. App. 

1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21

Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. 

App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Hardin v. State, 471 S.W.2d 60, 62 (Tex. Crim. App. 

1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 

2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Jackson v. Virginia, 443 U.S. 307, 318, 319, 99 S.Ct. 2781, 

 61 L.Ed.2d 560 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Middleton v. State, 476 S.W.2d 14, 16 (Tex. Crim. 

App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 

Rodriguez v. State, 90 S.W.3d 340, 358 (Tex. App.--El Paso 

2001, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18, 19

Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 

98 L.Ed.2d 798 (1988) . . . . . . . . . . . . . . . . . . . . . . . . 18

Taylor v. State, 440 S.W.3d 854, 856 (Tex. App.--Texarkana 

2013), aff’d, 450 S.W.3d 528 (Tex. Crim. App. 

2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Thomas v. State, 444 S.W.3d 4, 9 (Tex. Crim. 

App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
-viCASES: PAGE NO:

Varela v. State, 561 S.W.2d 186 (Tex. Crim. App. 1978). . . 17

Vasquez v. State, 67 S.W.3d 229, 240-41 (Tex. Crim. 

App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

STATUTES: PAGE NO:

TEX. CODE CRIM. PROC. ANN. ART. 21.08 . . . . . . . . . . . . . 23

TEX. CODE CRIM. PROC. ANN. ART. 29.06(3) . . . . . . . . . . 21

TEX. PENAL CODE ANN. § 31.03(e)(4)(A) (West 

Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . i

CONSTITUTIONS: PAGE NO:

TEX. CONST. ART. 1, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

U.S. CONST. AMEND. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-viiSTATEMENT OF THE CASE

This is a criminal case and an appeal from the trial court’s final

judgment of conviction for theft. See CR, pgs. 95-96.

In October of 2013, a grand jury in Lamar County returned an original

indictment that charged Lowrey with two (2) counts of alleged theft from his

former employer, “Joe Tex Express.” See CR, pg. 4. After a jury trial, a

jury, by its unanimous verdict, found Lowrey guilty of the offense of theft of

Material Aluminum/Copper/Bronze/Brass less than $20,000.00, as charged

in count 2 of the indictment. See RR, Vol. 4, pg. 97; 1Supp. CR, pg. 8. See

also Tex. Penal Code Ann. § 31.03(e)(4)(A) (West Supp. 2014).

After discharging the jury, the trial judge assessed punishment and

sentenced Lowrey to two (2) years confinement in the state jail division but

probated that sentence for five (5) years of community supervision. See RR,

Vol. 4, pgs. 125-126. In its final judgment of conviction, the trial court

assessed a fine of $1,000.00 (probated) along with court costs of $343.00

and restitution to be determined. See CR, pg. 95.

In a timely fashion, Lowrey filed his notice of appeal. See CR, pg. 94.

By this appeal, Lowrey brought four (4) issues/points of error.
-viiiSTATEMENT REGARDING ORAL ARGUMENT

The State will waive oral argument. See Tex. R. App. P. 38.2.
-ixISSUES PRESENTED IN REPLY

ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 1: THE

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING

THE WRIT OF ATTACHMENT.

ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 2: THE

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING

THE MOTION FOR CONTINUANCE.

ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 3: THE

EVIDENCE WAS LEGALLY-SUFFICIENT FOR THE JURY, AS A

RATIONAL FACT FINDER, TO FIND THAT “JOE TEX EXPRESS”

WAS THE SPECIFIC OWNER OF THE PROPERTY.

ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 4: THE

ALLEGED VARIANCE, IF ANY, (BETWEEN THE NAME OF THE

SPECIFIC OWNER ALLEGED AND THE NAME PROVED) WAS

IMMATERIAL, AND NOT FATAL.
-1-

CAUSE NO. 06-14-00172-CR

IN THE

COURT OF APPEALS

SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA

____________________________________________________________

GERALD MAC LOWREY, Appellant

V.

THE STATE OF TEXAS, Appellee

____________________________________________________________

ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT;

LAMAR COUNTY, TEXAS;

TRIAL COURT NO. 25492; HONORABLE WILL BIARD, JUDGE

____________________________________________________________

APPELLEE’S (STATE’S) BRIEF ____________________________________________________________

TO THE HONORABLE SIXTH COURT OF APPEALS:

COMES NOW, the State of Texas, by and through the elected County

and District Attorney of Lamar County, Gary D. Young, and the Lamar

County and District Attorney’s Office, respectfully submits its Appellee’s

(State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.

Unless otherwise indicated, Gerald Mac Lowrey will be referred to as

“the appellant” or “Lowrey” and the State of Texas as “the State.”
-2-

STATEMENT OF FACTS

Factual Background.

Since 2008, Joe Tex Xpress, a Texas company in Mount Vernon,

shipped metals machinery, lumber, building materials, railroad materials and

“things like that.” See RR, Vol. 3, pg. 114. According to Angela Dunavant

(Dunavant), the chief financial officer (or CFO) since 2006 (RR, Vol. 3, pgs.

112-113, 115), Joe Tex Xpress shipped for a manufacturer called “Hussey

Copper” (Hussey Copper). See RR, Vol. 3, pgs. 114, 179.

Hussey Copper was located in Eminence, Kentucky. See RR, Vol. 3,

pgs. 99, 166. Joe Tex Xpress shipped copper products from Hussey Copper.

See RR, Vol. 3, pg. 179.

Lowrey was an owner-operator for Joe Tex Xpress. See RR, Vol. 3,

pg. 114. Lowrey was a “contract laborer” (RR, Vol. 3, pg. 150) and subject

to an independent contractor agreement. See RR, Vol. 3, pg. 153;

Defendant’s Exhibit 1. 

Lowrey started in 2010, and he was terminated in 2013. See RR, Vol.

3, pgs. 115, 134-135, 162-164, 193. In 2013, some cargo went missing off

of a load that Lowrey was to haul. See RR, Vol. 3, pg. 115.

On May 1, 2013, Lowrey hauled a load (boxes of copper bars) from
-3-

Hussey Copper in Kentucky to El Paso, Texas. See RR, Vol. 3, pgs. 116-

117, 127-128. Lowrey was delivering to two different companies in El Paso,

Schneider Electric and Eaton Electric. See RR, Vol. 3, pgs. 126, 131, 144,

179.

Joe Tex Xpress had the responsibility of taking care of the copper.

See RR, Vol. 3, pg. 117. See also State’s Exhibit 14 (bill of lading). To the

one customer, Schneider Electric, the total weight was 17,089 pounds. See

RR, Vol. 3, pg. 183. To the other customer, the total weight was 28,321

pounds. See RR, Vol. 3, pgs. 183-184. Lowrey wasn’t just carrying copper

bars that were four-inches wide. See RR, Vol. 3, pg. 130. See also RR, Vol.

3, pg. 203 (the State “introduced evidence that the load was loaded down

with copper bars of varying widths”).

On the 1st or 2nd of May, Dunavant got notification from Hussey

Copper that the load had been “shorted.” See RR, Vol. 3, pg. 123.

Dunavant got notification for one open box from Schneider Electric. See

RR, Vol. 3, pgs. 131, 167; State’s Exhibit 12. See also RR, Vol. 3, pg. 144

(“open pallet, missing material”). Dunavant called Lowrey to discuss it with

him. See RR, Vol. 3, pgs. 123-124.
-4-

Lowrey Contacted Law Enforcement.

On May 4, 2013 (RR, Vol. 3, pg. 60), Keith Draper, a patrol deputy

with the Lamar County Sheriff’s Office (RR, Vol. 3, pgs. 23-24), made

contact with Lowrey, who reported that forty-one sticks of flat copper tubing

had been stolen. See RR, Vol. 3, pgs. 25, 33-34. Deputy Draper was

dispatched to an Exxon and a diner on Bonham Street, just west of the loop

in Paris. See RR, Vol. 3, pg. 31. During the interview in the parking lot,

Lowrey said that he had borrowed his daughter-in-law’s pickup and was

going to sell some “scrap.” See RR, Vol. 3, pgs. 26, 33. But, it was unclear

if he sold it or not. See RR, Vol. 3, pg. 33.

Deputy Draper “just wrote a report about it and contacted CID” and

then contacted Joel Chipman by telephone. See RR, Vol. 3, pgs. 27, 43.

Lowrey also wrote a statement. See RR, Vol. 3, pg. 29. According to policy

with the Lamar County Sheriff’s Office, the field encounter with the witness

was recorded (RR, Vol. 3, pgs. 29-31), but it wasn’t placed into evidence to

be saved. See RR, Vol. 3, pg. 30. See also RR, Vol. 3, pgs. 44-45.

CID Investigation.

Since 2009, Joel Chipman (Chipman) worked for the Lamar County

Sheriff’s Office as an investigator in the criminal investigation division. See
-5-

RR, Vol. 3, pgs. 40-41. Previously, Chipman retired from the Paris Police

Department after seventeen (17) years. See RR, Vol. 3, pg. 41. In May of

2013, Chipman was a certified peace officer. See RR, Vol. 3, pg. 42.

On May 4, 2013, Chipman received a call from Deputy Draper, who

said that “he had taken a theft report from Mr. Lowrey.” See RR, Vol. 3, pg.

43. Chipman had an occasion to meet Lowrey before May of 2013. See RR,

Vol. 3, pg. 43.

When Chipman started investigating this theft that Lowrey reported, it

was reported as “copper bars being about a quarter inch thick, four-inches

wide and twelve feet long.” See RR, Vol. 3, pg. 47. They had a silver

colored coating on them that was actually aluminum. See RR, Vol. 3, pg.

47. Chipman characterized the description of this copper theft as

“distinctive.” See RR, Vol. 3, pgs. 48-49. See also State’s Exhibit 2.

On May 15, 2013, Chipman went to Paris Iron and Metal. See RR,

Vol. 3, pgs. 49-50, 73-74. Paris Iron and Metal was located at Seventh

Northwest and Center Street in Paris, Lamar County, Texas. See RR, Vol. 3,

pgs. 49-50. Chipman asked if they had any copper bars; and as soon as he

said that, the person said, “I know exactly what you’re talking about.” See

RR, Vol. 3, pg. 50. Chipman believed it was like 12 bars. See RR, Vol. 3,
-6-

pg. 51. See also State’s Exhibits 2-7; RR, Vol. 3, pgs. 80-81. At least five

bars were the four-inch bars. See RR, Vol. 3, pg. 53. The bars looked like

“they were kept very well.” See RR, Vol. 3, pg. 55.

In addition to taking photographs, Chipman got a receipt that was

issued to Lowrey on May 1, 2013. See RR, Vol. 3, pgs. 56-57. See also

State’s Exhibit 8. Lowrey received $1,896.00 for “790 pounds of number

two copper” at $2.40 a pound. See RR, Vol. 3, pgs. 56-57. See also RR,

Vol. 3, pg. 103. 

On May 17, 2013, Chipman interviewed Lowrey, when he arrived,

left on his own, and was not under arrest. See RR, Vol. 3, pgs. 61-62.

Chipman “asked him about the scrap.” See RR, Vol. 3, pg. 63. See also RR,

Vol. 3, pg. 101. During the interview, Lowrey “had a relative that worked

for the phone company and that he gave him old wire and scraps to sell.”

See RR, Vol. 3, pgs. 63, 102. See also RR, Vol. 3, pg. 84. “He said about

400 pounds.” See RR, Vol. 3, pg. 63.

During the May 17th interview, Chipman showed him the receipt. See

RR, Vol. 3, pg. 64. When asked about the fact that it was 110 pounds light,

Lowrey “advised that Chris Woodall had been in the truck when they went

across the scales.” See RR, Vol. 3, pg. 65. See also RR, Vol. 3, pgs. 71,
-7-

103. “Chris Woodall got out of the truck; and Chris Woodall weighs about

110 pounds.” See RR, Vol. 3, pg. 65. See also RR, Vol. 3, pg. 66. 

During the interview, Lowrey became loud “pretty quick.” See RR,

Vol. 3, pg. 67. Voices were raised. See RR, Vol. 3, pg. 104. Lowrey was

angry and irritated. See RR, Vol. 3, pg. 105.

During the interview, Lowrey also volunteered that “he had bought

some off another truck driver up in Kentucky or somewhere, that this truck

driver had some scraps, some extra bars that he hadn’t off loaded yet, but he

was going back to the dock with these bars.” See RR, Vol. 3, pg. 67-68. See

also RR, Vol. 3, pgs. 71, 85. “He was supposed to have delivered it

somewhere.” See RR, Vol. 3, pg. 68. Lowrey also said that “he paid $200

for seven or eight sticks of it.” See RR, Vol. 3, pg. 85. See also RR, Vol. 3,

pgs. 102-103.

Afterwards, Lowrey said they went back to the house and picked up

Lacrisha Lowrey (or Lacrisha Woodall), and they went to the casino in

Grant, Oklahoma. See RR, Vol. 3, pgs. 71-72. Lacrisha is Lowrey’s ex

daughter-in-law. See RR, Vol. 3, pg. 106.

At some point, Chipman made the determination that Lowrey was no

longer a victim, but a suspect. See RR, Vol. 3, pgs. 89-90. Chipman made
-8-

that determination after the interview on May 17, 2013. See RR, Vol. 3, pg.

90. Lowrey admitted that he defrauded Paris Iron and Metal on how much

metal that he was selling. See RR, Vol. 3, pgs. 103, 109.

According to Chipman, it was his understanding that the trucking

company was financially responsible for the material, and that they were the

victim in the case. See RR, Vol. 3, pg. 95. The copper was “prepaid” by the

owners in El Paso. See RR, Vol. 3., pg. 95. The seller was Hussey Copper.

See RR, Vol. 3, pg. 95.

Indictment and Jury Trial.

1. The State’s Indictment Charged Lowrey with Theft.

On October 10, 2013, a grand jury in Lamar County returned an

original indictment that charged Lowrey with two (2) felony counts of theft.

See CR, pg. 4. The State’s original indictment alleged the owner of the

property to be “Joe Tex Express.” See CR, pg. 4.

2. The Cause Number Underlying this Appeal Proceeded to a

Jury Trial.

In due course, cause number 25492 proceeded to a jury trial. On

August 4, 2014, the trial court conducted the voir dire proceedings (RR, Vol.

2, pgs. 1, 4), and lawfully impaneled a petit jury. See RR, Vol. 2, pg. 48.

On August 5, 2014, the trial court called the cause number underlying
-9-

this appeal to put “a couple of items we’re going to put on the record.” See

RR, Vol. 3, pg. 6. During the pre-trial conference, the following occurred:

MR. HASLAM: I did one on Mr. Bueno. But I have --

we’re getting ready to go into trial as everybody knows, and the

Court yesterday just instructed me to do it orally rather than

present anything written. So, I don’t have anything written

prepared, so I don’t know. I’m not in a position now where I

can just kind of reverse field and go generate a written one.

THE COURT: Let me see what I’ve got and maybe we

can come up with something. We’re going to go ahead and

start.

See RR, Vol. 3, pg. 11.

At the start of the jury trial, the State presented the indictment, and

Lowrey entered a plea of “not guilty.” As its first witness, the State called

Deputy Draper, who recognized the defendant, Lowrey, in open court. See

RR, Vol. 3, pgs. 25-26. During Draper’s and Chipman’s testimony, the

defense stipulated to the identity of Lowrey. See RR, Vol. 3, pg. 59. 

As its third witness, the State called Dunavant; and upon the

conclusion of the State’s direct-examination, defense counsel for Lowrey

argued outside the presence of the jury that he had subpoenaed Raul Bueno,

an employee of Schneider Electric in El Paso. See RR, Vol. 3, pg. 136. The

return of that subpoena was filed on August 5, 2014. See 2Supp. CR, pg. 4.

Defense counsel for Lowrey advised that he got an e-mail from a lawyer in
-10-

Dallas, which stated:

For various reasons, not the least of which is the full day of

travel, I have been informed that Mr. Bueno will NOT be

making it to the trial of your client.

I wish I had better news but the last minute nature of this put

Mr. Bueno and Square D in a difficult position, to say the least.

See CR, pg. 82; RR, Vol. 3, pgs. 136-137.

Defense counsel for Lowrey requested a writ of attachment and

needed “to make a record.” See RR, Vol. 3, pg. 138. After argument, the

trial court denied the writ. See RR, Vol. 3, pgs. 138, 142.

Afterwards, the cross-examination of Dunavant began. See RR, Vol.

3, pg. 143. Upon the conclusion of Dunavant’s testimony, the State called

Craig Skidmore as its last witness; and after his testimony (RR, Vol. 3, pgs.

177-200), the State rested. See RR, Vol. 3, pg. 201.

Subsequently, Lowrey moved for a directed verdict (RR, Vol. 3, pgs.

202-204), which the trial court denied. See RR, Vol. 3, pg. 204. Then,

Lowrey urged the trial judge to “reconsider having Mr. Bueno brought

here.” See RR, Vol. 3, pg. 204. After further argument, the trial judge

remarked, “I’m going to deny your request.” See RR, Vol. 3, pg. 206. See

also RR, Vol. 3, pg. 208 (“The motion will be denied.”). However, the trial

judge also entered a “limine order that the State cannot argue that during its
-11-

closing that the removed some of the other widths from other crates.” See

RR, Vol. 3, pg. 206. 

Lowrey’s Case-in-Chief.

During his case-in-chief, Lowrey began and concluded his testimony

on the first day of trial. See RR, Vol. 3, pgs. 209-279. Because a juror

needed “to check the time because I have one in daycare,” the trial court

recessed the trial for that day. See RR, Vol. 3, pg. 280.

On the second day of the jury trial, August 6th (RR, Vol. 4, pg. 1), the

trial court pre-admitted the defendant’s exhibits 4, 5 and 6. See RR, Vol. 4,

pg. 6. On the morning of August 6th, Lowrey also filed a motion for

continuance (CR, pgs. 68-82) “based on the nonappearance of the witness

Bueno.” See RR, Vol. 4, pgs. 6-7. The trial court denied that motion and

signed the order to that effect. See RR, Vol. 4, pg. 7; CR, pg. 83.

As the guilt-innocence phase concluded, the trial court read its charge

to the jury. See RR, Vol. 4, pg. 68; 1Supp. CR, pgs. 3-7. After closing

arguments, the jury retired to begin its deliberations (RR, Vol. 4, pgs. 94-

95); and upon the conclusion of its deliberations, the jury returned a verdict.

See 1Supp. CR, pg. 8. By its verdict, the jury found Lowrey guilty of the

offense of theft of Material Aluminum/Copper/Bronze/Brass less than
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$20,000.00, as charged in count 2 of the indictment. See RR, Vol. 4, pg. 97;

1Supp. CR, pg. 8. The verdict was unanimous. See RR, Vol. 4, pg. 97. The

trial court then discharged the jury. See RR, Vol. 4, pgs. 97-99.

Punishment Phase of the Jury Trial.

During the punishment phase, the State offered final judgments of

conviction, and then rested. See RR, Vol. 4, pgs. 101-102. Lowrey

presented his mitigation evidence (RR, Vol. 4, pgs. 102-120), and rested.

See RR, Vol. 4, pg. 121.

After brief argument from both parties, the trial court found Lowrey

guilty of theft, as alleged in count 2 of the indictment. See RR, Vol. 4, pg.

125. The trial judge then assessed punishment and sentenced Lowrey to two

(2) years confinement in the state jail division but probated that sentence for

five (5) years of community supervision. See RR, Vol. 4, pgs. 125-126.

On August 6th, the trial court signed its final judgment of conviction

by jury (CR, pgs. 95-96), that was later filed of record on August 26, 2014.

See CR, pg. 95. On August 12, 2014, Lowrey timely filed his notice of

appeal. See CR, pg. 94.

Proceedings in this Court of Appeals.

In this Court, Lowrey filed a notice of appeal on or about August 18,
-13-

2014. The District Clerk of Lamar County filed the Clerk’s Record on or

about November 14, 2014. The official court reporter filed the Reporter’s

Record on or about December 9, 2014. Subsequently, the District Clerk of

Lamar County filed supplemental Clerk’s Records on or about December

29th and February 9, 2015.

On or about February 12, 2015, Lowrey filed his brief. On or about

March 16th, the State filed the first motion (of two motions) to extend the

time to file its brief, which this Court granted. On or about April 15, 2015,

the State filed its second motion for extension of time to file its brief, which

this Court granted until May 6th. The State filed its brief on May 6, 2015.

SUMMARY OF THE ARGUMENT

By this appeal, Lowrey brought four (4) issues/points of error which

alleged that (1) the trial court abused its discretion in denying a writ of

attachment for a defense witness, Raul Bueno (Bueno); (2) the trial court

abused its discretion in denying a motion for continuance based on the nonappearance of the witness, Bueno; (3) the trial court erred in holding the

evidence to be sufficient as to the identity of the victim; and (4) the trial

court erred in holding the evidence to be sufficient because of a fatal

variance between the name of the victim alleged (“Joe Tex Express”) and
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“Joe Tex Xpress, Inc.”).

Upon final submission, this Court should overrule each of these

issues/points of error, and affirm, for the following reasons: (1) the trial

court did not abuse its discretion in denying the writ of attachment because

(a) Lowrey did not carry his burden to show materiality as to the witness,

Bueno; and (b) Lowrey did not exercise diligence in timely serving Bueno;

(2) the trial court did not abuse its discretion in denying the motion for

continuance for sub-reasons (a)-(b) above; (3) the evidence was legallysufficient for a rational jury to find “Joe Tex Express” was the specific

owner of the property; and (4) the alleged variance, if any, between the name

alleged and the name proved was not fatal.

ARGUMENT AND AUTHORITIES

ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 1: THE

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING

THE WRIT OF ATTACHMENT.

A. Standard of Review: Abuse of Discretion.

With his first issue/point of error on appeal, Lowrey complained that

he was entitled to compulsory process to secure the presence of a witness.

See Appellant’s Brief, pgs. 2, 15-20. In the present case, the trial court

initially ruled, “I’m going to tell you, I’m going to deny your request for a
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writ of attachment.” See RR, Vol. 3, pg. 138. Later, the trial court stated:

THE COURT: Well, the Court’s recollection of the

testimony was that the boxes are easily opened. There was no

evidence that any of the other boxes were opened, just the one.

So, the Court is going to deny your request for the writ. And

you can obviously ask on cross.

See RR, Vol. 3, pgs. 141-142.

This Court should review the trial court’s decision to deny the writ of

attachment using the abuse-of-discretion standard. See Clark v. State, 305

S.W.3d 351, 355 (Tex. App.--Houston [14th Dist.] 2010), aff’d, 365 S.W.3d

333 (Tex. Crim. App. 2012); Emenhiser v. State, 196 S.W.3d 915, 921 (Tex.

App.--Fort Worth 2006, pet. ref’d); Rodriguez v. State, 90 S.W.3d 340, 358

(Tex. App.--El Paso 2001, pet. ref’d).

B. The Right to Compulsory Process Was Not Absolute.

Criminal defendants have a right to compulsory process for obtaining

witnesses. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. But the

right to compulsory process is not absolute. See Emenhiser, 196 S.W.3d at

921.

“The Sixth Amendment does not guarantee, however, the right to

secure the attendance and testimony of any and all witnesses; rather, it

guarantees only compulsory process for obtaining witnesses whose
-16-

testimony would be both material and favorable to the defense.” See

Coleman v. State, 966 S.W.2d 525, 527-28 (Tex. Crim. App. 1998). “To

exercise the federal constitutional compulsory process right, the defendant

must make a plausible showing to the trial court, by sworn evidence or

agreed facts, that the witness’ testimony would be both material and

favorable to the defense.” See id. at 528. “A defendant who has not had an

opportunity to interview a witness may make the necessary showing by

establishing the matters to which the witness might testify and the relevance

and importance of those matters to the success of the defense.” See id.

It is the burden of the appellant, Lowrey, to show that the testimony

for which he seeks compulsory process was material and necessary to his

defense. See Castillo v. State, 901 S.W.2d 550, 553 (Tex. App.--El Paso

1995, pet. ref’d) (citing Hardin v. State, 471 S.W.2d 60, 62 (Tex. Crim. App.

1971)). In Hardin, defense counsel took the stand and testified that although

he believed that missing witnesses would support the defendant’s alibi, he

did not know what the witnesses would say. See Castillo, 901 S.W.2d at

553. Counsel’s mere belief that a witness would support the defense’s case

is insufficient to establish materiality. See Emenhiser, 196 S.W.3d at 921

(citing Castillo, 901 S.W.2d at 553; Hardin, 471 S.W.2d at 62)). Similarly,
1 Lowrey’s motion for continuance was unsworn. See CR, pg. 71.

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in Varela v. State, 561 S.W.2d 186 (Tex. Crim. App. 1978), the Court held

that the defendant’s testimony that a missing witness might say something to

the defendant’s benefit was not sufficient to show that the witness was

material to the defense. See Castillo, 901 S.W.2d at 553 (citing Varela, 561

S.W.2d at 191).

1. Lowrey Did Not Carry His Burden to Show Materiality.

In the present case, Lowrey did not carry his burden to show that

Bueno’s testimony was material and necessary to his defense. See Castillo,

901 S.W.2d at 553 (citing Hardin, 471 S.W.2d at 62); Varela, 561 S.W.2d at

191. The State requested defense counsel to “write out what he would have

this person testify to, I can -- if he’ll write it out, I can see if I can stipulate to

it to avoid the need of a writ for somebody in El Paso.” See RR, Vol. 3, pg.

137. See also RR, Vol. 3, pg. 142. But, nothing was ever written as to what

Bueno would testify to. See Coleman, 966 S.W.2d at 528 (to exercise the

federal constitutional compulsory process right, the defendant must make a

plausible showing to the trial court, by sworn evidence or agreed facts).

Instead of making such a plausible showing to the trial court by

sworn1

 evidence or agreed facts, see id, defense counsel argued that the

testimony was needed to “unring a bell” (RR, Vol. 3, pg. 139, 140) and to
-18-

rebut the inference, which was allegedly created on direct-examination, that

“there were other boxes opened on this shipment.” See RR, Vol. 3, pg. 137.

Instead of sworn evidence or agreed facts from Lowrey, the trial court was

left with defense counsel’s “mere belief” as to what Bueno would testify to,

and counsel’s “mere belief” was insufficient to establish materiality. See

Emenhiser, 196 S.W.3d at 921 (citing Castillo, 901 S.W.2d at 553; Hardin,

471 S.W.2d at 62). Further, the trial court was left with its recollection of

the testimony (RR, Vol. 3, pg. 141), and that “[t]here was no evidence that

any of the other boxes were opened, just the one.” See RR, Vol. 3, pg. 141-

142. Because the trial court could have reasonably concluded that Lowrey

did not carry his burden to show materiality, the trial court did not abuse its

discretion in denying the writ of attachment. See Clark, 305 S.W.3d at 355,

Emenhiser, 196 S.W.3d at 921; Rodriguez, 90 S.W.3d at 358.

2. Lowrey Did Not Exercise Diligence to Subpoena Witness.

Moreover, the right to compulsory process is dependent upon an

accused’s initiative, and the nature of the right requires that its effective use

be preceded by “deliberate planning and affirmative conduct” by the

defendant. See Rodriguez, 90 S.W.3d at 358 (quoting Taylor v. Illinois, 484

U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)). In Driggers v. State,
-19-

155 Tex. Crim. 475, 236 S.W.2d 497 (1950), the Texas Court of Criminal

Appeals addressed a subpoena for the attendance of a witness that was

issued six days before the trial date, and held the following:

It appears to us that the process was not issued in time and that

the delay in having the subpoena issued is unexplained. The

court before whom the hearing was had has rather a wide

discretion in such matters, and this court will not hold that he

abused the same unless it definitely appears from the record that

he has done so.

See id, 155 Tex. Crim. at 477, 236 S.W.2d at 498.

In the present case, Lowrey issued a subpoena on July 25, 2014, a

Friday. See 2Supp. CR, pg. 3. According to the officer’s return, Cynthia

Nava (“SCH 3453”) served Raul Bueno on July 29, 2014 (2Supp. CR, pg.

4), which was a Tuesday before the jury trial began with voir dire

proceedings on Monday, August 4, 2014. See RR, Vol. 2, pg. 1. In serving

a defense witness (Bueno) six days before trial, as in Driggers, the trial court

could have reasonably concluded that Lowrey’s right to compulsory process

was not effectively used by “deliberate planning and affirmative conduct.”

See Rodriguez, 90 S.W.3d at 358. See also Gentry v. State, 770 S.W.2d 780,

787 (Tex. Crim. App. 1988) (the appellant has failed to prove he acted

diligently in attempting to obtain the witness’ presence in court). For this

second reason, the trial court did not abuse its discretion in denying the writ
-20-

of attachment.

In conclusion, the trial court did not abuse its discretion in denying the

writ of attachment. Therefore, Lowrey’s first issue/point of error should be

overruled.

ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 2: THE

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING

THE MOTION FOR CONTINUANCE.

A. Standard of Review: Abuse of Discretion.

This Court should review a trial court’s denial of a mid-trial

continuance on an abuse of discretion standard. See Vasquez v. State, 67

S.W.3d 229, 240-41 (Tex. Crim. App. 2002).

Mid-trial, on the morning of August 6th, Lowrey filed his motion for

continuance (CR, pgs. 68-82) “based on the nonappearance of the witness

Bueno.” See RR, Vol. 4, pgs. 6-7. The trial court denied that motion and

signed the order to that effect. See RR, Vol. 4, pg. 7; CR, pg. 83.

B. The Trial Court Did Not Abuse its Discretion in Denying

Lowrey’s Motion for Continuance.

1. Lowrey’s Motion Made No Mention of the Statutory

Requirement Under Article 29.06(3).

In the present case, Lowrey’s August 6th motion for continuance made

no mention, as required by statute, of “[t]he facts which are expected to be
-21-

proved by the witness, and it must appear to the court that they are material.”

See Tex. Code Crim. Proc. Ann. art. 29.06(3). See also Gentry, 770 S.W.2d

at 786-87 (applying Article 29.06 requirements to motions for continuance

made during the course of trial under Article 29.13). Even if the motion had

complied with the statutory requirement under article 29.06(3), the trial

court could have reasonably concluded that Lowrey did not carry his burden

to show materiality. Therefore, the trial court did not abuse its discretion in

denying Lowrey’s mid-trial motion for continuance.

2. Lowrey’s Motion Was Unsworn.

In Gentry, there was no written sworn motion for continuance. See

Gentry, 770 S.W.2d at 786. Since the motion is not self-proving, the Texas

Court of Criminal Appeals held in Gentry that the Texas Court of Criminal

Appeals also held that “the record must contain an affidavit or otherwise

reflect what the absent witness would have testified to.” See id. 

In the present case, Lowrey’s motion was written, but unsworn. See

CR, pg. 71. Further, Lowrey’s motion did not contain an affidavit, that was

signed and notarized, and did not reflect what Bueno would have testified to.

See CR, pg. 71; Gentry, 770 S.W.2d at 786.

Accordingly, the trial court did not abuse its discretion in denying the
-22-

mid-trial motion for continuance. Lowrey’s second issue/point of error

should be overruled.

ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 3: THE

EVIDENCE WAS LEGALLY-SUFFICIENT FOR THE JURY, AS A

RATIONAL FACT FINDER, TO FIND THAT “JOE TEX EXPRESS”

WAS THE SPECIFIC OWNER OF THE PROPERTY.

A. Standard of Review: Sufficiency of the Evidence.

With his third issue/point of error, Lowrey complained that the trial

court erred in holding the evidence to be sufficient to sustain the conviction

because the evidence was insufficient to prove the identity of the victim, as

alleged in the indictment. See Appellant’s Brief, pg. 21.

In evaluating legal sufficiency, this Court should review all the

evidence in the light most favorable to the trial court’s judgment to

determine whether any rational jury could have found the essential elements

of theft beyond a reasonable doubt. See Taylor v. State, 440 S.W.3d 854,

856 (Tex. App.--Texarkana 2013), aff’d, 450 S.W.3d 528 (Tex. Crim. App.

2014) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010);

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979)). Under Jackson, when reviewing the sufficiency of the evidence,

this Court views all the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential
-23-

elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at

318-19.

This Court examines legal sufficiency under the direction of the

Brooks opinion, while giving deference to the responsibility of the jury “to

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

reasonable inferences from basic facts to ultimate facts.” See Taylor, 440

S.W.3d at 856; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007).

B. The Evidence Was Legally-Sufficient to Prove the Existence

of the Specific Owner, i.e., an Entity Known as “Joe Tex Xpress”.

Article 21.08 of the Texas Code of Criminal Procedure provided the

following:

Where one person owns the property, and another person has

the possession of the same, the ownership thereof may be

alleged to be in either. Where property is owned in common, or

jointly, by two or more persons, the ownership may be alleged

to be in all or either of them. When the property belongs to the

estate of a deceased person, the ownership may be alleged to be

in the executor, administrator or heirs of such deceased person,

or in any one of such heirs. Where the ownership of the

property is unknown to the grand jury, it shall be sufficient to

allege that fact.

See Tex. Code Crim. Proc. Ann. art. 21.08.
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1. The Existence of the Specific Owner is an Element of the

Offense, But Not the Name.

The existence of the specific owner is an element, but not the name.

See Byrd v. State, 336 S.W.3d 242, 251 (Tex. Crim. App. 2011). Nowhere

in the penal code is the name of the owner made a substantive element of

theft. See id (citing Freeman v. State, 707 S.W.2d 597, 602-03 (Tex. Crim.

App. 1986) (plurality op.) (noting that the name of the owner of property is

not a part of the definition of theft, although the name of the owner must be

alleged in the charging instrument)).

In Byrd, the Texas Court of Criminal Appeals reasoned that the Code

of Criminal Procedure, as a matter of state law, requires the State to allege

the name of the owner of property in its charging instrument. See Byrd, 336

S.W.3d at 251, n. 48. In Byrd, the Court of Criminal Appeals also held that:

When an entity, such as a corporation, owns property, the

traditionally preferable practice had been to allege ownership in

a natural person acting for the corporation. But as Judge

Clinton noted, this practice developed in the early twentieth

century before the adoption of the 1974 Penal Code when the

definition of “owner” for purposes of the theft statutes was

much narrower. Judge Clinton explained that, under the current

Penal Code, a corporation may both own and have actual

possession of property. Thus it is perfectly permissible, and

sometimes preferable, to now allege the corporation--Wal-Mart,

for example--as the owner of the property and then call any

agent or employee who holds a relevant position in the

company to testify that the corporation did not give effective
-25-

consent for a person to steal or shoplift its property.

Although the name of the owner is not a substantive

element of theft, the State is required to prove, beyond a

reasonable doubt, that the person (or entity) alleged in the

indictment as the owner is the same person (or entity)--

regardless of the name--as shown by the evidence. . . . In sum, it

is the identity of the person, not his formal name, that controls

and guides the sufficiency of the evidence review.

See id. at 252-53 (references to footnotes omitted).

In applying the Byrd rationale above, the State’s indictment alleged

“Joe Tex Express” as the owner thereof. See CR, pg. 4. During the trial on

August 5, 2014, Dunavant testified that she worked for “Joe Tex Xpress” in

an office in Mount Vernon, Texas since 2006. See RR, Vol. 3, pgs. 112-113.

Dunavant testified that she was the “CFO” or chief financial officer, and that

she was personally familiar with Lowrey as an “owner-operator for our

company.” See RR, Vol. 3, pg. 114. Dunavant also testified, as follows:

Q. Okay. And what type of things does your

company ship?

A. Metals, machinery, lumber, building materials,

railroad materials, things like that.

See RR, Vol. 3, pg. 114. See also Defendant’s Exhibit 1.

Viewing the evidence above in the light most favorable to the jury’s

verdict, a rational fact finder could have found, beyond a reasonable doubt,
-26-

that “Joe Tex Xpress” was an “entity” and the specific owner, as alleged in

the indictment. See CR, pg. 4. In addition to the references to a “company”

above, a rational fact finder could have inferred that a chief financial officer

would act as an agent or employee of the “entity.” Further, a rational fact

finder could have found, beyond a reasonable doubt, that “Joe Tex Xpress”

was the same entity--regardless of the name that included “Inc.”--as shown

by the evidence. See Byrd, 336 S.W.3d at 252-53. Here, there was no

evidence of any “person” that could be identified as “Joe Tex”; rather, the

identity of the entity (“Joe Tex Xpress”) remained the same and consistent

throughout the entire jury trial.

Thus, the evidence was legally-sufficient for a rational jury to find,

beyond a reasonable doubt, that the owner was an entity known as “Joe Tex

Xpress.” Accordingly, Lowrey’s third issue/point of error should be

overruled.

ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 4: THE

ALLEGED VARIANCE, IF ANY, (BETWEEN THE NAME OF THE

SPECIFIC OWNER ALLEGED AND THE NAME PROVED) WAS

IMMATERIAL, AND NOT FATAL.

A. Standard of Review: Material and Immaterial Variances.

With his final issue, Lowrey alleged that there was a material and fatal

variance between the name alleged and the name proved. See Appellant’s
-27-

Brief, pg. 21. There are two types of variances in an evidentiary-sufficiency

analysis: material variances and immaterial variances. See, e.g., Thomas v.

State, 444 S.W.3d 4, 9 (Tex. Crim. App. 2014).

Immaterial variances do not affect the validity of a criminal

conviction, and the Texas Court of Criminal Appeals has held that a

hypothetically correct jury charge need not incorporate allegations that

would give rise to only immaterial variances. See id (citing Geick v. State,

349 S.W.3d 542, 545 (Tex. Crim. App. 2011); Gollihar v. State, 46 S.W.3d

243, 256 (Tex. Crim. App. 2001) (holding that the fact that the indictment

alleged the incorrect serial number for a stolen Go Kart was immaterial and

did not warrant reversal of the conviction because the serial number was not

a statutory element and the appellant was not prejudiced by use of the

incorrect serial number)). However, a material variance renders a conviction

infirm, and the only remedy is to render an acquittal. See Thomas, 444

S.W.3d at 9 (citing Cada v. State, 334 S.W.3d 766, 776 (Tex. Crim. App.

2011) (reversing the judgment of the court of appeals and rendering an

acquittal when there was a material variance between the indictment and the

proof adduced at trial); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App.

2000) (“If the evidence is insufficient to support [the] conviction, the
-28-

remedy is acquittal.”).

B. The Alleged Variance, If Any, Between the Name Alleged

and the Name Proved Was Immaterial.

As previously explained above, the existence of the specific owner is

an element, but not the name. See Byrd, 336 S.W.3d at 251. Nowhere in the

penal code is the name of the owner made a substantive element of theft.

See id. 

In the present case, the alleged variance, if any, between the name

alleged (i.e. “Joe Tex Express”) (CR, pg. 4) and the name proved (“Joe Tex

Xpress, Inc.”) (e.g. Defendant’s Exhibit 1) was immaterial because the name

of the specific owner was not a substantive element of theft, see id; and a

hypothetically correct jury charge need not incorporate allegations that

would give rise to only immaterial variances. See Thomas, 444 S.W.3d at 9.

Also, the Texas Court of Criminal Appeals held in Middleton v. State, 476

S.W.2d 14 (Tex. Crim. App. 1972) that “there is nothing to indicate that the

omission of the averment that the Humble Oil and Refining Company is a

corporation could have misled the appellant.” See id. at 16. See also

Boyette v. State, 632 S.W.3d 915, 917 (Tex. App.--Houston [14th Dist.]

1982, pet. ref’d).

In Boyette, “Jetronics Inc.” was a small company dealing in the sale of
-29-

electronic, radar and aircraft equipment. See id. at 916. The appellant was

the company bookkeeper which authorized her to write checks on the

corporation accounts. See id. at 917. The evidence at trial was undisputed

that in September and October of 1978, the appellant wrote two checks for

her own benefit on a Jetronics’ account; and a jury convicted her of felony

theft. See id. 

In Boyette, the appellant maintained that the trial court erred in

entering judgment and in failing to set aside her conviction and grant her a

new trial because there was a fatal variance between the name alleged in the

indictment and the name proved, thereby making the evidence insufficient to

establish ownership in the named owner. See id. Specifically, the appellant

pointed out the indictment alleged ownership of the stolen property in

“Jetronics,” when the true name of the owner as shown in the evidence was

“Jetronics, Inc.” See id.

In Boyette, however, the court of appeals disagreed by not seeing this

variance as fatal, nor did the court of appeals believe the evidence was

insufficient to establish ownership of the stolen property. See id. The

Boyette Court reasoned that it was an established principle of Texas criminal

law that all essential averments in an indictment must be proved as alleged.
-30-

See id. Even though the “true” name of the owner was Jetronics, Inc., the

Boyette Court reasoned that the testimony was uncontroverted that Jetronics

and Jetronics, Inc. were one and the same, and that Jetronics, Inc. was

generally referred to as Jetronics. See id. In Boyette, the court of appeals

saw no variance between the name alleged in the indictment and the name

proved. See id. If a variance did exist at any point in the testimony, it was

not of a fatal or material nature when seen in light of the overall testimony.

See id.

Clearly, the Boyette rationale applied to the present facts and

circumstances, and the alleged variance between the name alleged (i.e. “Joe

Tex Express”) and the name proved (“Joe Tex Xpress, Inc.”) was not fatal.

See id. Throughout Lowrey’s trial, the testimony was uncontroverted that

“Joe Tex Express” and “Joe Tex Xpress, Inc.” were “one and the same”

trucking company that contracted with Lowrey as an owner-operator to haul

loads. See RR, Vol. 3, pg. 114; Defendant’s Exhibit 1. If a variance did

exist at any point in the testimony, as in Boyette, it was not of a fatal or

material nature when seen in light of the overall testimony. See id.

Therefore, Lowrey’s fourth and final issue/point of error should be

overruled.
-31-

PRAYER

WHEREFORE PREMISES CONSIDERED, the State of Texas prays

that upon final submission without oral argument, this Court affirm the trial

court’s final judgment of conviction, adjudge court costs against the

appellant, and for such other and further relief, both at law and in equity, to

which it may be justly and legally entitled.

Respectfully submitted,

Gary D. Young

Lamar County & District Attorney

Lamar County Courthouse

119 North Main

Paris, Texas 75460

(903) 737-2470

(903) 737-2455 (fax)

By:________________________________

Gary D. Young, County Attorney

SBN# 00785298

ATTORNEYS FOR STATE OF TEXAS
-32-

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “Appellee’s (State’s) Brief” was a computer-generated document and

contained 7997 words--not including the Appendix, if any. The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.

______________________________

GARY D. YOUNG

gyoung@co.lamar.tx.us

CERTIFICATE OF SERVICE

This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the “Appellee’s (State’s) Brief” has been served on the 6th day of

May, 2015 upon the following:

Gary L. Waite

104 Lamar Avenue

Paris, TX 75460

______________________________

GARY D. YOUNG

gyoung@co.lamar.tx.us