Gary Moore v. State, 06-14-00056-CR

Gary Moore was convicted in the trial court of theft under $1,500 with two prior theft convictions and sentenced to five years’ confinement under an agreed punishment approach.
Loss Prevention Officer observations and Wal‑Mart surveillance showed Moore selecting high‑value items, looking around, and leaving a cart with unpaid merchandise near a deserted exit as a police car arrived.
Moore pleaded true to two jurisdictional priors and the State introduced judgments showing prior convictions; the jury ultimately convicted Moore of the primary theft offense.
A contested pretrial amendment to the indictment regarding the 1994 jurisdictional prior was sought by the State but the indictment was never actually amended.
Moore argued the indictment amendment and the variance between pleading and proof affected his rights; the defense objected at trial to the amendment, and Moore asserted a right to appeal punishment issues, which he later waived for a five-year sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of theft mens rea	Moore intended to deprive Wal‑Mart of the property.	Evidence did not prove an intent to deprive.	Circumstantial evidence supports intent to steal.
Indictment amendment on the day of trial	The State validly amended the indictment as a clerical error.	There was no effective amendment; error possible and prejudicial.	No reversible error; any amendment was harmless.
Sufficiency of jurisdictional priors after variance	Variance between pleading and proof prejudiced the defense.	Variance was material and prejudicial; relief required.	Variance immaterial; sufficient notice to sustain juristictional priors.
Sufficiency of proof for punishment enhancements	Two sequential non-theft felonies support enhancement to a second‑degree felony.	Waived appeal of punishment issues; but, if reached, insufficient proof.	Appellant waived appeal; in any case, proof supports enhancement to second‑degree felony.
Details of prior theft convictions in jury charge	Details of priors properly admitted and reflected in the jury charge.	Detailing priors in the jury charge was error.	Admission and charge properly reflected; any error harmless given accompanying evidence.

Baker v. State, 511 S.W.2d 272 (Tex. Crim. App. 1974) (removal of property not required for theft)
Rowland v. State, 744 S.W.2d 610 (Tex. Crim. App. 1988) (intent to deprive may be inferred from acts and conduct)
Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) (circumstantial evidence supports intent to steal)
Old Chief v. United States, 519 U.S. 172 (Supreme Court 1997) (statuatory rule on stipulations and prior convictions)
Martin v. State, 200 S.W.3d 635 (Tex. Crim. App. 2006) (permissible ways to instruct jury about stipulated priors)
Perez v. State, 429 S.W.3d 639 (Tex. Crim. App. 2014) (amendment procedures and record requirements for amendments)