Gerald Mac Lowrey v. State
469 S.W.3d 318
Tex. App.2015Background
- Gerald Mac Lowrey, an owner-operator for Joe Tex Express, transported crates of copper bars on May 1, 2013; one crate (order 1443685-2) arrived at Schneider Electric with 41 bars missing.
- Lowrey sold 790 pounds of copper to Paris Iron and Metal the same day; photos and receipts showed bars of various widths, including at least five four-inch bars that matched the opened crate.
- Joe Tex Express (the named victim) asserted Lowrey had no permission to dispose of or sell shipment contents; Angela Dunavant (CFO) testified regarding the missing open pallet.
- Lowrey reported the theft but later admitted selling metal and gave varying explanations (scrap, purchases from another driver).
- Lowrey subpoenaed Schneider Electric employee Raul Bueno to testify he inspected the load and only one crate was opened; Bueno failed to appear and Lowrey sought a writ of attachment and a continuance, both denied.
- Jury convicted Lowrey of theft of metal valued under $20,000; sentence probated to five years community supervision. Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court denied writ of attachment for subpoenaed witness (Bueno) | Lowrey: Bueno would testify he inspected crates and only one crate was opened, contradicting State inference of other opened crates; denial violated compulsory process | State: Bueno's testimony would be cumulative; Lowrey did not provide sworn proffer and failed to show materiality or diligence | Denial not an abuse of discretion; Bueno's testimony would have been cumulative and not materially relevant |
| Denial of continuance to secure Bueno's attendance | Lowrey: Continuance needed after unexpected refusal to honor subpoena; would allow securing Bueno's testimony | State: Motion was unsworn and procedurally deficient; testimony not sufficiently material | Denial reasonable; motion unsworn so complaint not preserved; any error harmless |
| Sufficiency / variance re: identity of victim named in indictment (Joe Tex Express) | Lowrey: Indictment named "Joe Tex Express" but did not allege corporate form or special owner; State failed to prove identity/ownership as charged causing fatal variance | State: Evidence (Dunavant testimony, shipping documents) proved Joe Tex Express was owner; identity, not formal name, controls sufficiency | Evidence sufficient; no material variance—identity of entity proved and Lowrey had notice; conviction affirmed |
Key Cases Cited
- Sturgeon v. State, 106 S.W.3d 81 (Tex. Crim. App. 2003) (three-step test for preserving error when subpoenaed witness fails to appear)
- Erwin v. State, 729 S.W.2d 709 (Tex. Crim. App. 1987) (proffer requirement for absent witness testimony)
- Burk v. State, 876 S.W.2d 877 (Tex. Crim. App. 1994) (overruling and limiting prior precedent on related jury-charge matters)
- Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) (identity of owner controls sufficiency in theft prosecutions; alleging entity may be preferable)
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (variance framework: discrepancy between pleading and proof)
- Roberts v. State, 513 S.W.2d 870 (Tex. Crim. App. 1974) (insufficient proof where indictment named individual owner but evidence established corporate ownership)
- Easley v. State, 319 S.W.2d 325 (Tex. Crim. App. 1959) (reversal where indictment named individual but evidence showed corporation owned goods)
- Janecka v. State, 937 S.W.2d 456 (Tex. Crim. App. 1996) (prejudice required to show abuse of discretion on continuance denial)
- Harrison v. State, 187 S.W.3d 429 (Tex. Crim. App. 2005) (standard of review for continuance rulings)