Pedro Palomo Lucio v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-119-CR PEDRO PALOMO LUCIO, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT NO. CR-92-0369, HONORABLE ROBERT T. PFEUFFER, JUDGE PRESIDING PER CURIAM A jury found appellant guilty of habitual theft. Tex. Penal Code Ann. § 31.03(e)(4)(E) (West Supp. 1993). The jury assessed punishment, enhanced by two previous felony convictions for offenses other than theft, at imprisonment for seventy years. In his first point of error, appellant contends there is a fatal variance between the pleading and the proof. The indictment described the property stolen as "one (1) 12-pack of Beer of the value of TWENTY DOLLARS ($20.00) or more but less than TWO HUNDRED DOLLARS ($200.00)." The evidence reflects that the beer had a value under twenty dollars. Appellant urges that his conviction must be reversed because the State did not prove the value alleged. The State argues that this is simply a case involving proof of a lesser included offense. This is not strictly true. Despite the allegation as to the value of the stolen property, appellant was indicted pursuant to section 31.03(e)(4)(E), which provides that a theft is a felony of the third degree if the value of the property stolen is less than $750 (the usual minimum for a felony) and the defendant has been previously convicted two or more times of any grade of theft. The offense proved by the State was the offense alleged in the indictment. In a prosecution for theft, the allegation as to the value of the stolen property is not descriptive other than as it affects whether the offense is a felony or a misdemeanor. Houston v. State, 265 S.W. 585, 588 (Tex. Crim. App. 1924) (opinion on motion for rehearing). In this cause, the State alleged and proved a third-degree felony under section 31.03(e)(4)(E). The State's failure to prove the specific value alleged is not a fatal variance. Sowders v. State, 693 S.W.2d 448, 450 (Tex. Crim. App. 1985). Point of error one is overruled. Appellant's second point of error is that the punishment assessed is cruel and unusual in light of the small amount of property stolen. This argument ignores appellant's status as both a habitual thief and a habitual felon. The punishment assessed in this cause is within the range prescribed by statute, and appellant has not demonstrated that it is unconstitutionally disproportionate under the circumstances. See Solem v. Helm, 463 U.S. 277 (1983). Point of error two is overruled. The judgment of conviction is affirmed. [Before Chief Justice Carroll, Justices Aboussie and Jones] Affirmed Filed: August 11, 1993 [Do Not Publish]