### IN THE

TENTH COURT OF APPEALS

No. 10

- 19

- 00110

- CR

No. 10

- 19

- 00111

- CR

CHARLES W. DEFOREST

, Appellant

v.

THE STATE OF TEXAS

, Appellee

From the 12th District Court

Madison County, Texas

Trial Court No s

. 17

- 12834 & 17

- 12838

MEMORANDUM OPINION

In trial court cause number 12,834, the jury found Charles W. Deforest, Appellant,

guilty of the state jail felony offense of theft between $2,500 and $30,000. The same jury

also found Appellant guilty, in trial court cause number 12,838, of the offense o f engaging

in organized criminal activity. The trial court assessed punishment for the theft

conviction at confinement for two years and, after it found two enhancement paragraphsDeforest v. State Page 2

to be true in the engaging in organized criminal activity case, assessed pu nishment at

confinement for forty years. The trial court sentenced Appellant in accordance with its

assessment of punishment. We modify the judgment in trial court cause number 12,834,

the theft case, to delete the assessment of costs but otherwise affir m that judgment. We

affirm the judgment in trial court cause number 12,83 8

, the engaging in organized

criminal activity case.

Appellant has filed the same brief in each of these appeals. Likewise, the State has

responded with the same brief in each appea l. However, not all issues on appeal are

relevant to both appeals.

With that in mind, we will first dispose of Appellant’s fourth issue on appeal. In

the fourth issue, Appellant addresses only the theft conviction. Appellant maintains that

the trial cou rt erred when it assessed costs and fees against him in both judgments. The

State agrees

, and so do we.

The Texas Code of Criminal Procedure provides: “ In a single criminal action in

which a defendant is convicted of two or more offenses or of multiple co unts of the same

offense, the court may assess each court cost or fee only once against the defendant. ” T EX

.

C ODE C RIM

. P ROC

. A NN

. art. 102.073 (West)

. The costs or fees assessed are to be “assessed

using the highest category of offense that is possible based on the defendant's

convictions. ” Id

. at (b). This court has previously held that in cases in which allegations

and evidence of more than one offense are presented in a single trial

, a trial court err s ifDeforest v. State Page 3

it assess es costs in each convictio n. Hurlburt v. State

, 506 S.W.3d 199, 203

– 04 (Tex. App.

—

Waco 2016

, no pet. )

. We modify the judgment in the theft case (trial court cause number

17

- 12834) to delete the assessment of costs and fees. Otherwise, we affirm that judgment.

In the three issues that remain, Appellant addresses only his conviction for

engaging in organized criminal activity.

In his first issue on appeal, Appellant contends that, although the evidence is

sufficient to prove theft under the law of parties, the evidence is insuffici ent to show that

Appellant conspired, before the theft, to aid in the commission of the offense. Appellant

asserts that the only evidence offered at trial related to his involvement after the thefts

were completed.

We review a challenge to the sufficiency of the evidence 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.

— Eastl and

2010, pet. ref'd). Under the Jackson standard, we review all the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. Ja ckson

, 443 U.S. at 319;

Isassi v. State

, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

When we conduct a sufficiency review, we consider all the evidence admitted at

trial, including evidence that may have been improperly admitted. Winfrey v. State

, 393

S.W .3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State

, 235 S.W.3d 772, 778 (Tex. Crim.Deforest v. State Page 4

App. 2007). We defer to the factfinder'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

, 235 S.W.3d at 778. The jury, as the trier of fact, “is the sole judge

of the credibility of the witnesses and of the strength of the evidence.” Fuentes v. State

,

991 S.W.2d 267, 271 (Tex. Crim. App. 1999). When the record supports conflicting

inferences, we presume that the factfinder resolved the conflicts in favor of the verdict,

and we defer to that determination. Jackson

, 443 U.S. at 326; Clayton

, 235 S.W.3d at 778.

Billy Ray Fannin, Jr. met John Wayne Keefer when they were both in county jail.

Fannin testified that Keefer told him that if he ever needed anything, to let him know.

Later, on April 9, 2017, Fannin contacted Keefer at Keefer’s trailer. Fannin intended to

steal some things and asked Keefer whether he would buy the stolen items. Appellant

and Melissa Tedford ( Keefer’s girlfriend) were present during this conversation.

Appellant lived with Keefer. Fannin testified that they struck a deal that he would steal

property and that Appellant, Keefer, and Tedford would buy it.

After Fannin had that conversation with A ppellant, Keefer, and Tedford, he and a

juvenile, Tyler, returned to a place where they had been fishing earlier in the day and

“grabbed some weed eaters and chain saws.” They took the stolen items to Keefer’s

house and “got a price for it.” Appellant wa s present during this transaction.Deforest v. State Page 5

Fannin and Tyler then went to some property owned by Justin Lee. Lee owned a

landscaping company. Fannin had worked for him until about three weeks or so earlier;

Lee had fired him because he was a bad employee.

Lee k ept the tools of his landscaping trade in a workshop on his property. The

shop was situated on the inside so that operable tools were segregated from the

inoperable ones that needed to be repaired.

When Fannin and Tyler arrived at Lee’s property, they ju mped the fence, and stole

some landscaping equipment; they took only that equipment that was operable. They

again took the stolen property to Appellant, Keefer, and Tedford and “got a price on it.”

There was also a Kawasaki Mule on Lee’s property. Although the Mule was titled

in Lee’s brother’s name, the Mule had been given to Lee’s brother’s eleven

- year

- old

autistic son as a gift.

When Fannin took the landscaping equipment to Appellant, Keefer, a nd Tedford,

he told them that he could steal the Kawasaki Mule and bring it to them. Appellant,

Keefer, and Tedford were present during all or a part of the conversation. Fannin, Tyler,

and Fannin’s little sister, Ammie, went back to Lee’s property to ge t the Mule. As Fannin,

Tyler, and Ammie traveled back to Lee’s property, Appellant, Keefer, and Tedford

followed them. Eventually, Appellant, Keefer, and Tedford stopped following them. The

plan was that they would all meet on another road close to Lee’ s property after Fannin,Deforest v. State Page 6

Tyler, and Ammie had the Mule; Appellant, Keefer, and Tedford were to then take the

Mule.

Fannin and Tyler got the Mule and met Appellant, Keefer, and Tedford as

previously arranged. Appellant, Keefer, Tyler, and Tedford tried to load the Mule into

the pickup that Appellant, Keefer, and Tedford were in; they were unsuccessful. They

decided to hide the Mule in a pasture until they could get a trailer and return for it the

next day.

As they were in the process of hiding the Mule, th ey noticed lights from an

approaching vehicle and the parties scattered. Appellant stayed with the Mule during

the night until the others returned with a trailer.

Meanwhile, Fannin and Tyler went to another location to steal some more

property. At this p oint, Fannin and Tyler locked themselves out of the Suburban that

they were driving.

At around 4:30 a.m. on April 10, 2017, Fannin called Curtis Klingle, a deputy with

the Madison County sheriff’s office. Fannin was one of many young people that Deputy

Kl ingle had mentored over the years. Fannin asked Deputy Klingle to help him unlock

the Suburban. Deputy Klingle tried but was not able to gain access to the vehicle.

When the parties went to load the Mule, they discovered that Tyler had apparently

taken t he key to the Mule with him when they all scattered; they had to push it onto the

trailer. After they loaded the Mule, Appellant, Fannin, Keefer, and Tedford took it to aDeforest v. State Page 7

self

- storage facility in Flynn. Appellant rented and signed the paperwork to rent

— i n his

name

— a self

- storage unit there. The Mule was later located in that self

- storage unit that

had been rented by Appellant.

When Lee’s employees came to work around 8:00 a.m. on April 10, 2017, they

noticed that operable “gear” was not in the shop wh ere it was normally kept; they

reported that to Lee. Lee noted that a chain saw, a hedge trimmer, two trimmers, two

backpack blowers, a Kombimotor, and a DeWalt generator were missing. A 2011

Kawasaki Mule was also missing.

Lee reported the theft to th e Madison County sheriff’s office and Deputy Klingle

responded. Lee furnished the serial numbers and descriptions of the missing property to

Deputy Klingle. Lee also told Deputy Klingle that he had fired Fannin earlier.

When Lee told Deputy Klingle about firing Fannin, Deputy Klingle became

suspicious and surmised that Fannin was a suspect in the theft. Deputy Klingle arranged

for Fannin’s sister, the owner of the Suburban that he had tried to unlock for Fannin

earlier, to come and unlock it; she did. I nside, on the console, Deputy Klingle found a

Kawasaki Mule key. It was later determined that it was the key to the stolen Mule.

Deputy Klingle asked Sergeant Larry Shiver, an investigator for the Madison

County sheriff’s office, to assist in the inve stigation. Sergeant Shiver used the LEADS

system to check the serial numbers and descriptions of the items that had been stolen

from Lee. LEADS online is a data base used by pawn shops, scrap yards and some goldDeforest v. State Page 8

dealers, as well as law enforcement person nel, to track stolen property. Sergeant Shiver

discovered that some of the property that had been stolen from Lee had been pawned at

a pawn shop in Tomball.

Sergeant Shiver put a hold on the property and went to the pawn shop in Tomball.

He recovered s everal of the items that had been stolen from Lee. Sergeant Shiver also

viewed videos of the transaction as recorded by video equipment in the pawn shop. He

recognized Keefer and Tedford and he also identified Appellant from the videos. The

videos show Appellant and the pawn shop clerk as they moved Lee’s generator into the

pawn shop. The videos also show Appellant hand his ID to the clerk, the clerk return the

ID to Appellant, the clerk hand cash to Appellant, Appellant sign a receipt for the cash,

App ellant put the money into his wallet and, finally, put the wallet into his pocket.

Appellant contends that the evidence that we have outlined is insufficient to

support a finding that he is guilty of the offense of engaging in organized criminal

activi ty.

Section 71.02 (a) of the Texas Penal Code provides, in relevant part: “ A person

commits an offense if, with the intent to establish, maintain, or participate in a

combination or in the profits of a combination

... the person commits or conspires to

comm it

... theft.” T EX

. P ENAL C ODE A NN

. § 71.02 (West)

. U nder section 71.02, “ the State

must prove that the accused, with intent to establish, maintain, or participate in aDeforest v. State Page 9

combination, committed or conspired to commit an enumerated offense, including

[theft].” McIntosh v. State

, 52 S.W.3d 196, 199 (Tex. Crim. App. 2001)

.

Section 71.02(a) provides two alternate means by which one commits the offense

of engaging in organized criminal activity : by either committing the underlying offense

or b y conspiring to commit the underlying offense. Barrera v. State

, 321 S.W.3d 137, 143

(Tex. App.

— San Antonio 2010

, pet. ref’d )

. In this case, the State charged Appellant with

conspiring to commit the offense of theft.

Appellant maintains that the only e vidence as to his involvement shows only his

participation after the theft. The essence of Appellant’s argument is that although the

evidence is admittedly sufficient to prove his involvement as a party to the theft of the

Mule, the evidence fails to show a “pre

- theft agreement” and he could not, therefore,

have conspired to commit the theft. Appellant argues that because the State relied on a

“ conspiring to commit” theft theory, the State must prove that Appellant agree d in

advance to aid in the commissi on of the offense. We note that Appellant attacks no other

element of the offense of engaging in organized crime.

In accordance with the standard of review that we have set forth, we view the

evidence in the light most favorable to the verdict. We consider both direct and

circumstantial evidence

, as well as all reasonable inferences that may be drawn from the

evidence

, in making our determination. Clayton v. State

, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). “Because direct evidence is rarely avai lable to prove the existence of anDeforest v. State Page 10

agreement, circumstantial evidence is sufficient and is almost always needed.”

Nwosoucha v. State

, 325 S.W.3d 816, 831 (Tex. App.

— Houston [14th Dist.] 2010, pet. ref’d)

(quoting Jarnigan v. State

, 57 S.W.3d 76, 87 (Tex

. App.

— Houston [14th Dist.] 2001, pet.

ref'd). It is within the province of t he jury to infer an agreement among people who are

pursuing a common project when the actions of each of those person s is consistent with

the realiz ation of the common goal. Id.

Each time that Fannin went to Keefer’s house, where Appellant also lived, either

to discuss the sale of stolen property or to deliver stolen property, Appellant was present.

Appellant personally pawned much of the stolen property and put the money in his

pocket.

When Fannin went to Keefer’s house to discuss the theft of the Kawasaki Mule,

Appellant was there at that time also. After they had discussed the theft of the Mule,

Appellant, Keefer, and Tedford followed Fannin, Tyler, and Ammie on the way to g et the

Mule. The plan was for Keefer and Appellant to meet Fannin, Tyler, and Ammie “down

the road” to load the Mule in the back of a pickup. When they had to abandon that plan,

they put the Mule in a pasture; Appellant stayed there in that pasture until the others

returned the next day with a trailer. It was then that they were able to load the Mule.

Appellant, Keefer, Fannin, and Tyler hauled the Mule to Flynn. There, they hid it in a

storage building that Appellant leased.Deforest v. State Page 11

Because we believe that th e evidence is sufficient to support a finding that

Appellant was guilty of the offense of engaging in organized criminal activity, as alleged

in the indictment, we overrule Appellant’s first issue on appeal.

In his second issue on appeal, Appellant contend s that the application paragraph

of the jury charge was incorrect. With no objection from Appellant, the trial court

instructed the jury, in relevant part, as follows:

Now, if you find from the evidence beyond a reasonable

doubt that on or about 9th, day of April 2017 and before the

presentment of this indictment (sic), in Madison County and

State of Texas CHARLES WILLIAM DEFOREST did then and

there with the intent to establish, maintain, or participate in a

combination or in the profits of a combinatio n, said

combination consisting of the defendant and Melissa Tedford

and Billy Fannin and John Wayne Keefer and [Tyler], a

juvenile, who collaborated or conspired to commit the offense

of Theft of Property of a value of $2,500 or more but less than

$30,000 then you will so say by your verdict "Guilty." Unless

you so find beyond a reasonable doubt, or if you have a

reasonable doubt thereof, you will acquit the defendant and

say by your verdict ''Not Guilty. ”

It is Appellant’s position that when the trial court included the word “who” after

“ said combination consisting of the defendant and Melissa Tedford and Billy Fannin and

John Wayne Keefer and [Tyler], a juvenile ,” rather than ask the jury whether Appellant

“committed or conspired to commit” theft

, the trial court effectively told the jury that

Appellant and the others had collaborated or conspired to commit the offense of theft.

The instruction mirrors the indictment. It seems to us, and we so hold, that the

language, “ said combination consisting of the defendant and Melissa Tedford and BillyDeforest v. State Page 12

Fannin and John Wayne Keefer and [Tyler], a juvenile ,” merely adds required

information about or describes the constitution of the combination alleged by the State.

We are of the opinion that a plain reading of the instruction leads to the conclusion that

the trial court inquired of the jury whether Appellant was a member of the named

combination and whether that combination conspired to commit the offense of theft; it

did not inform the jury of the truth of that allegation.

Even if we are in error in our construction, we would not reverse the conviction.

As we have said, Appellant did not object to the jury charge. Accordingly, we revers e

the judgment only if any error result ed in egregious harm. Villarreal v. State

, 453 S.W.3d

429, 433 (Tex. Crim. App. 2015). “Charge error is egregiously harmful if it affects the very

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

theory.” Id. “Egregious harm is a ‘high and difficult standard’ to meet, and such a

determination must be ‘borne out by the trial record.’” Id. (quoting Reeves v. State

, 420

S.W.3d 812, 816 (Tex. Crim. App. 2013)). “An egregious harm determination must be

based on a finding of actual rather than theoretical harm.” Arrington v. State

, 451 S.W.3d

834, 840 (T ex. Crim. App. 2015) (quoting Cosio v. State

, 353 S.W.3d 766, 777 (Tex. Crim.

App. 2011)).

Egregious harm is only shown when the error results in harm such that the

accused did not receive a fair and impartial trial. Almanza

, 686 S.W.2d at 171. In Almanz a,

the Texas Court of Criminal Appeals outlined four factors that a reviewing court shouldDeforest v. State Page 13

consider when determining whether a jury

- charge error resulted in egregious harm: (1)

the charge itself; (2) the state of the evidence, including contested issues an d the weight

of the probative evidence; (3) arguments of counsel; and (4) any other relevant

information revealed by the record of the trial as a whole. Villarreal

, 453 S.W.3d at 433.

We have opined on the charge itself and we have outlined the evidence p resented

at trial. Additionally, the State points out in its brief that the evidence showed that “other

members of the combination

. . . admitted to their participation in the

. . . combination

with Appellant.” Based upon our consideration of the factors set out in Villarreal

, we

cannot conclude that Appellant suffered egregious harm that resulted from the

complained

- of instruction. We overrule Appellant’s second issue on appeal.

In Appellant’s third issue on appeal, he complains that t he trial court err ed when

it admitted, over his objection, evidence of a conviction that differed from the

enhancement allegation contained in the indictment

. The indictment in the engaging in

organized criminal activity case contained two enhancement paragraphs. In the f irst of

those paragraphs, the State alleged a prior conviction for the felony offense of driving

while intoxicated. In the enhancement paragraph, the State alleged that the offense

occurred in Groesbeck County. Groesbeck is not a county but is a city wit hin Limestone

County.

At the punishment phase of trial, the State offered State’s Exhibit 3, a certified copy

of the judgment relative to the felony driving while intoxicated conviction. AppellantDeforest v. State Page 14

objected to the admission of the exhibit because, since h e had never been convicted in

Groesbeck County, he was surprised. Appellant also objected that the enhancement was

“not a proper enhancement.” The remainder of Appellant’s objection was directed at the

second enhancement paragraph and that paragraph is n ot a subject of this appeal. The

trial court overruled the objection. That ruling is the basis of Appellant’s third issue on

appeal.

The State points out that although Appellant, in his brief, states that he was misled

by the fatal variance in the enha ncement paragraph, he did not object in the trial court

upon that ground. We agree. To the extent that his argument on appeal might be

considered as a fatal variance argument, it is waived. See Cole v. State

, 611 S.W.2d 79, 80

(Tex. Crim. App. 1981) (before the sufficiency of allegations in an enhancement paragraph

may be challenged on appeal, the defendant must have moved, in the trial court, to quash

the enhancement provision in the indictment ).

The State maintains that Appellant could not ha ve been surprised by the

introduction of the evidence. That is so, the State argues, because on February 5, 2018, it

furnished Appellant with a “Notice of Intent to Use Evidence of Extraneous Offenses or

Bad Acts.” The document contained the correct coun ty designation, the correct cause

number, and the correct designation of court in which the subject felony driving while

intoxicated conviction occurred. Further, the State points out that the guilt/innocence

portion of the trial of this case was not cond ucted until August 2018. At that time, theDeforest v. State Page 15

State provided access to a copy of the Limestone County judgment to Appellant; the

punishment phase of the trial was not begun until February 28, 2019.

Our review of a trial court's ruling on admissibility of evi dence is for an abuse of

discretion. Coble v. State

, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). A trial court does

not abuse its discretion unless its decision to admit evidence lies outside the zone of

reasonable disagreement. Beham v. State

, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018 )

Approximately one year before the punishment phase of the trial in this case

began, Appellant had notice of the correct information relative to the felony driving while

intoxicated conviction that the State intended t o prove. Appellant also had the

indictment that had been returned against him. However, no clarification or relief was

sought from the trial court. We fail to see how Appellant could have been surprised. The

trial court did not abuse its discretion whe n it overruled Appellant’s claim of surprise

and admitted State’s Exhibit 3. We overrule Appellant’s third issue on appeal.

We modify the judgment in trial court cause number 12,834 to delete the

assessment of costs and fees. Otherwise, we affirm that ju dgment. We affirm the

judgment in trial court cause number 12,838.

JIM R. WRIGHT

S enior C hief J usticeDeforest v. State Page 16

Before Chief Justice Gray,

Justice Johnson , and

Visiting Justice Wright 1

Affirmed as modified

Opinion delivered and filed July 7, 2021

Do not publish

[CRPM]

1 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by

assignment of the Chief Justice of the Texas Supreme Court. See T EX

. G OV ’ T C ODE A NN

. §§ 74.003, 75.002,

75.003.