#### Norman Lee WATSON, Appellant, v. The STATE of Texas, Appellee.

No. 03-95-00406-CR.

Court of Appeals of Texas, Austin.

May 29, 1996.

*830Raymond E. Fuchs, San Antonio, for Appellant.

Bill M. Reimer, District Attorney, Dib Waldrip, Assistant District Attorney, New Braunfels, for the State.

Before POWERS, JONES and ONION,* JJ.

*

 Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. *See*Tex.Gov’t Code Ann. § 74.003(b) (West 1988).

ONION, Justice (Retired).

Norman Lee Watson was convicted of engaging in organized criminal activity. Act of May 26, 1993, 73d Leg., R.S., ch. 761, § 3, 1993 Tex.Gen.Laws 2966, 2967-68 (Tex. Penal Code Ann. § 71.02, since amended). Appellant waived trial by jury and entered a plea of not guilty. The trial court found appellant guilty of the third-degree felony alleged and assessed his punishment, enhanced by two prior felony convictions, at 60 years’ imprisonment.

Appellant advances two points of error. First, he challenges the legal sufficiency of the evidence to sustain the conviction because the State failed to prove the value of the property stolen as alleged in describing the underlying or predicate offense (theft) to *831the offense charged. Second, appellant urges that the special theft enhancement allegation in the indictment, which was separate and apart from the habitual criminal allegations of two prior felony convictions, was “mere surplusage” and could not have been properly used to increase the punishment category of the primary offense charged.

Section 71.02 of the Penal Code in effect at the time of the alleged offense provided in pertinent part:

> (a) A person commits an offense, if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more of the following:

> (1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;....

> *(b) Except as provided in Subsection (c) of this section, an offense under this section is one category higher than the most serious offense listed in Subdivisions (1) through (10) of Subsection (a) of this section that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a felony of the third degree, except that if the most serious offense is a felony of the first degree, the offense is a felony of the first degree.*

(emphasis added). Under section 71.02(b) set out above, the allegation of a Class A misdemeanor predicate offense would make the offense of the engaging in organized criminal activity a third-degree felony.

In addition to the primary offense, the indictment also alleged:

> And it is further presented in and to said Court, that before the commission of the aforesaid above, the defendant had theretofore been convicted twice of a grade of theft in that on the 1ST day of DECEMBER, A.D., 1981, in the DISTRICT COURT of BEXAR County, Texas in cause number 81CR1626 on the docket of said court, entitled THE STATE OF TEXAS VS. ANDRE JOHNSON, said conviction being for the offense of THEFT OVER 200 UNDER 10,000.00; and on the 7TH day of SEPTEMBER, A.D., 1977, in the DISTRICT COURT of BEXAR County, Texas, in cause number 77CR11768 on the docket of said court, entitled THE STATE OF TEXAS VS. ANDRE JOHNSON said conviction being for the offense of THEFT OVER $200 UNDER $10,-000.00;

This enhancement of punishment allegation was patterned after former Penal Code section 31.08(e)(4)(E) in effect at the time of the commission of the alleged offense. Act of May 10,1993, 73d Leg., R.S., eh. 203, §§ 4, 5, 1993 Tex.Gen.Laws 390, 391. Section 31.03(e)(4)(E) provided: “(e) Except as provided by Subsection (f) of this section an offense under this section is: (4) a felony of the third degree if: (E) the value of the property stolen is less than $750 and the defendant has been previously convicted two or more times of any grade of theft.” It appears that this provision is specifically limited to section 31.03 (theft) and not applicable to other offenses.

The instant indictment also alleged two prior felony convictions, one for felony theft1 and one for forgery, under the provisions of section 12.42(d) of the Penal Code in effect at the time of the commission of the primary offense. Act of May 23, 1983, 68th Leg., R.S., ch. 339, § 1, 1983 Tex.Gen.Laws 1750 (Tex.Penal Code § 12.42(d), since amended).

With this background, we turn to the initial contention that challenges the legal sufficiency of the evidence. Briefly, the record reflects that on February 24,1994, San Antonio Police Officer Frank Randolph was told by an informant that a group including appellant was actively involved in a purse snatching scheme. Later that morning, Randolph and other officers observed the group going into stores in Live Oak and Universal City. Still later, Perry Smith, another San Antonio *832police officer, who was watching the group, saw their vehicle enter the parking lot of a Handy-Andy store in New Braunfels. Claudette Lampkin, one of the group, entered the store without a purse. Appellant followed. The two talked and split up. Subsequently Lampkin was seen leaving the store, now clutching a purse. Thereafter, appellant left the store and the car in which the group had been travelling moved to the front of the store to pick him up. The officers blocked the vehicle. Inside the car the police found a purse containing the identification of Joan Boyd. She testified that while shopping in the store she was approached by appellant and asked to read an orange juice coupon to him. At the time her purse was in her shopping cart. Later, she heard her name called out on the store’s loudspeaker system. At the front of the store she identified her purse, not having noticed it missing. This was the purse found in the group’s car.

Appellant contends that the evidence is insufficient to establish the value of the purse, the only item allegedly stolen, at $200 or more. On direct examination of Mrs. Boyd, the prosecutor did not establish value of any kind. On cross-examination, defense counsel informed the trial court that the police report indicated that value of the purse and its contents was about $215. Counsel then elicited from Mrs. Boyd that the purse was valued at $25, and that the purse contained at the time about $50 in cash, eyeglasses worth $100, sunglasses and a checkbook. No value was placed on these latter two items. The State concedes that since the purse was the only item allegedly stolen the evidence is legally insufficient to establish the value alleged at $200 or more but less than $750. Appellant urges that he is entitled to an acquittal. We disagree.

In *Bigley v. State,*865 S.W.2d 26, 28 (Tex.Crim.App.1993), the Court of Criminal Appeals held that Rule 80 of the Texas Rules of Appellate Procedure2 gives a court of appeals the authority to reform a judgment to reflect a conviction on a lesser-included offense upon a determination that the evidence was insufficient to support a conviction for the greater offense but would support a conviction for the lesser-included offense. A jury convicted the defendant of possession of 400 grams or more of methamphetamine. The State proved that the defendant possessed 388.76 grams of pure methamphetamine which supported the lesser-included offense of possession of 28 grams or more but less than 400 grams of methamphetamine, which issue was submitted to the jury, but it did not support the offense for which the jury convicted the defendant. On appeal, the judgment was reformed under the authority of Rule 80 to reflect a conviction for the lesser-included offense finding support in the evidence. *Bigley v. State,*831 S.W.2d 409 (Tex.App.—Austin 1992) (op. on reh’g). The Court of Criminal Appeals affirmed such action. Judge Baird concurred that the reformation was not jeopardy barred *because the issue of the lesser-included offense had been submitted to the jury. Bigley,*865 S.W.2d at 29 (Baird, J., concurring). *See also Doherty v. State,*892 S.W.2d 13, 17 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); *Griffin v. State,*866 S.W.2d 754, 756-57 (Tex.App.—Tyler 1993, no pet.); *Thorpe v. State,*831 S.W.2d 548, 552 (Tex.App.-Austin 1992, no pet.).

The instant case was a bench trial. There was no jury charge. However, a trial court is authorized to find a defendant guilty for any lesser-included offense for which the evidence provides the required proof. *Shute v. State,*877 S.W.2d 314, 315 (Tex.Crim.App.1994); *Cunningham v. State,*726 S.W.2d 151, 153 (Tex.Crim.App.1987); *Mello v. State,*806 S.W.2d 875, 877 (Tex.App.—Eastland 1991, pet. ref'd). In finding a defendant guilty of the greater offense the trial court necessarily finds the evidence sufficient to convict the defendant of the lesser-included offense. *Shute,*877 S.W.2d at 315. The double jeopardy provisions of the federal and state constitutions do not prohibit a retrial for a less*833er-included offense when the first trial was before the trial court and there was sufficient evidence on which the trial court could have found a defendant guilty of the lesser-included offense. *Id.*

The instant judgment reflects a conviction for the primary offense of engaging in organized criminal activity, a third-degree felony based on the underlying class A misdemeanor theft offense. The evidence, as conceded by the State, is insufficient to support this conviction. However, because the evidence established that the purse stolen had a value of $25, there was evidence to support the lesser-included offense of engaging in organized criminal activity based on the lesser underlying class B misdemeanor theft offense 3 (enhanced to a class A misdemeanor by Section 71.02(b)).

By virtue of Rule 80, we reform the judgment to reflect a conviction for engaging in organized criminal activity, a Class A misdemeanor, based on the predicate offense of a Class B misdemeanor theft. *See Bigley,*865 S.W.2d at 28. The judgment of conviction, as reformed, is affirmed as to the adjudication of guilt but the cause is remanded to the trial court for a new hearing on punishment. Tex. Code Crim.Proc.Ann. art. 44.29(b) (West Supp.1996). The first point of error is overruled.

In regard to the new hearing on punishment, we observe that punishment for a class A misdemeanor cannot be enhanced by section 12.42(d) of the Penal Code, which is applicable only to felonies by its express terms. *Cf. Ortiz v. State,*626 S.W.2d 586, 588-89 (Tex.App.1981); *Clifton v. State,*156 Tex.Crim. 655, 246 S.W.2d 201, 203 (1952) (op. on reh’g) (holding that a prior misdemeanor may not be utilized to enhanced a punishment for a subsequent felony conviction because the statutes do not so provide).

In the second point of error, appellant contends that the “paragraph of the indictment alleging the theft enhancement provision of the Penal Code [Section 31.03(e)(4)(E)]” was mere surplusage and could not be used to enhance punishment. These allegations have been set out earlier in the opinion. Appellant’s complaint about an irregularity in the indictment is raised for the first time on appeal. His failure to object to the form or substance of the indictment prior to trial constitutes a waiver of the error, if any. *See*Tex.Const. art. V, § 12(b); Tex.Code Crim.Proc.Ann. § 1.14(b); *Fisher v. State, 887*S.W.2d 49, 54 (Tex.Crim.App.1994); *Studer v. State,*799 S.W.2d 263, 268, 273 (Tex.Crim.App.1990). Moreover, if the allegations were indeed surplusage and were not used, the inclusion in the indictment would be a harmless irregularity, if any, under the circumstances of the instant ease.

It appears that the State attempted to use two methods to convert the instant offense of engaging in organized criminal activity into a third-degree felony so that the habitual criminal allegations4 in the indictment could be utilized. First, the State relied upon the provisions of section 71.02(b) (engaging in organized criminal activity) to convert the alleged underlying class A misdemeanor theft into a third-degree felony. Second, the State attempted to use the section 31.03(e)(4)(E) provision of the general theft statute to convert the instant offense into a third-degree felony. As to the first method, the proof failed. As to the second method, *it*is clear that section 31.03(e)(4)(E) is applicable only to a *theft*conviction “under this section” meaning the general theft statute [section 31.03],

Section 31.03(e)(4)(E) and its forerunners created a new theft offense of a felony grade where there were two or more theft convictions of any grade and the instant offense is a misdemeanor theft offense where the value of the property stolen is less than *834$750 (formerly less than $200). *Diamond v. State,*530 S.W.2d 586, 587 (Tex.Crim.App.1975); *Chambers v. State,*736 S.W.2d 192, 195 (Tex.App.—Dallas 1987, no pet.) (citing *Gant v. State,*606 S.W.2d 867, 871 (Tex.Crim.App.1980)); *cf. Meshell v. State,*841 S.W.2d 895, 896 (Tex.App.—Corpus Christi 1992, no pet.). It has been held that an offense of credit card abuse is not a theft offense and that it cannot be used to invoke section 31.03(e)(4)(E) even if there are two or more theft convictions. *Colquitt v. State,*650 S.W.2d 128, 128 (Tex.App.—Houston [14th Dist] 1983, no pet.); *see also Meshell,*841 S.W.2d at 896. Likewise, burglary is not a theft offense for the purpose of section 31.03(e)(4)(E). *Chambers,*736 S.W.2d at 195. We also conclude that engaging in organized criminal activity as prohibited in section 71.02 is not a theft offense for the purpose of section 31.03(e)(4)(E), even if the underlying offense is a theft offense.

The instant indictment charged appellant with the offense of engaging in organized criminal activity, a third-degree felony as alleged. At the guilt stage of the bifurcated bench trial, the trial court found appellant guilty “as charged.” The judgment reflects that the conviction was for “engaging in organized criminal activity.” It appears that the trial court found appellant guilty of the primary offense alleged as a third-degree felony and enhanced punishment by virtue of the two prior felony convictions alleged to establish a habitual criminal status. The complained-of allegations were not used. The second point of error is overruled.

The judgment is reformed to show a Class A misdemeanor conviction for engaging in organized criminal activity. As reformed, the judgment is affirmed as to the conviction. The judgment is reversed as to punishment and the cause is remanded to the trial court for a new hearing on punishment consistent with this opinion. Tex.Code Crim.Proc.Ann. art. 44.29(b) (West Supp.1996).

1

. This felony theft conviction was a different theft conviction than either of two theft convictions alleged in the indictment for enhancement under section 31.03(e)(4)(E).

2

. In relevant part Rule 80 reads:

> (b) Types of Judgment. The Court of Criminal Appeals may: .... (2) modify the judgment of the court below by correcting or reforming it.

> 

> (c) Other orders. In addition, the Court of Criminal Appeals may make any other appropriate order, as the law and nature of the case may require.

3

. Act of May *10,*1993, 73d Leg., R.S., ch. 203, §§ 4, 5 1993 Tex.Gen.Laws 390, 391 (Tex.Penal Code Ann. § 31.03(e)(2)(A), since amended). Section 31.03(e)(2)(A) in effect at the time of the commission of the offense provided:

> (e) Except as provided by Subsection (f) of this section, an offense under this section is:

> (2) a Class B misdemeanor if:

> (A) the value of the property stolen is $20 or more but less than $200; ...

4

. Tex.Penal Code Ann. § 12.42(d) (West 1994). For the sake of convenience, the current code is cited.