Gerald Mac Lowrey v. State
06-14-00172-CR
Tex. Crim. App.May 6, 2015Background
- Defendant Gerald Mac Lowrey, an owner-operator contractor for a Mount Vernon trucking company, was indicted for theft after copper bars from a May 2013 delivery were found short and some bars were sold to a local scrap yard.
- Indictment named the owner as “Joe Tex Express”; trial evidence identified the company in testimony and documents as “Joe Tex Xpress, Inc.”
- Investigator located bars at Paris Iron & Metal and found a receipt showing Lowrey sold 790 lbs of copper on May 1, 2013; Lowrey gave varying explanations in interviews and admitted he misrepresented weight to the scrap yard.
- Defense sought a writ of attachment for an out-of-town witness (Raul Bueno) and later a mid‑trial continuance for his nonappearance; both requests were denied by the trial court.
- A jury convicted Lowrey of theft (material copper under $20,000); the trial court sentenced him to two years state jail, probated for five years.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lowrey) | Held |
|---|---|---|---|
| 1. Denial of writ of attachment for witness Bueno | Trial court properly denied because defendant failed to show sworn, specific, material testimony and lacked diligence in subpoenaing witness | Needed compulsory process to "unring the bell" and rebut state inference about other opened boxes | Denial not an abuse of discretion: no sworn showing of materiality and service was late |
| 2. Denial of mid‑trial continuance for nonappearance of Bueno | Motion failed statutory requirements (unsworn; did not state facts expected from witness) | Continuance necessary because key impeachment/defensive testimony unavailable | Denial not an abuse of discretion: motion unsworn and deficient under art. 29.06(3) and precedent |
| 3. Sufficiency of evidence to prove named owner (“Joe Tex Express”) | Evidence (CFO testimony and business records) established the corporate entity that owned the property; identity of owner, not exact name, is required | Alleged insufficiency because the indictment named slightly different spelling/formation than corporate records | Evidence legally sufficient: jury could find the entity owner existed and matched the indicted owner |
| 4. Alleged fatal variance between name alleged and name proved | Any variance between “Joe Tex Express” and “Joe Tex Xpress, Inc.” was immaterial and not prejudicial; name is not a substantive element of theft | Variance was material/fatal and undermines ownership proof in indictment | Variance immaterial: court upheld conviction because proof showed the same entity and defendant was not misled |
Key Cases Cited
- Coleman v. State, 966 S.W.2d 525 (Tex. Crim. App. 1998) (compulsory-process requires plausible sworn showing that witness testimony would be material and favorable)
- Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) (existence/identity of owner is required but the formal name is not a substantive element of theft)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (legal-sufficiency standard: view evidence in light most favorable to verdict)
- Taylor v. Illinois, 484 U.S. 400 (U.S. 1988) (compulsory process and defendant initiative require deliberate planning and conduct)
- Gentry v. State, 770 S.W.2d 780 (Tex. Crim. App. 1988) (requirements for continuance motions and need for affidavit/record of expected testimony)
- Thomas v. State, 444 S.W.3d 4 (Tex. Crim. App. 2014) (material vs. immaterial variance analysis)