Tiffany Nicole Read v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00388-CR

TIFFANY NICOLE READ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 31736B, Honorable Titiana Frausto, Presiding

August 14, 2024
OPINION
Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Tiffany Nicole Read, appeals her conviction for the state-jail-felony

offense of theft of property having a value of $2,500 or more but less than $30,000,1 with

the punishment enhanced to that of a third-degree felony by two prior state-jail-felony

1 See TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A).
convictions.2 She also appeals the resulting sentence of ten years’ incarceration and a

$10,000 fine. We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Around 3:30 a.m. on October 23, 2021, Randall Welling observed a Suburban SUV

parked in a bar ditch parallel to a fence enclosing Insurance Auto Auctions (IAA).3 As

Welling approached the vehicle, it drove away. After investigating the area, Welling called

the Randall County Sheriff’s Office to report what appeared to be a break-in of IAA.

During the call, Welling gave a description of the SUV that had fled the area.

Randall County Sheriff’s Officer Marcus Diaz saw an SUV in the area that matched

the description of the suspect vehicle reported by Welling. Officer Diaz stopped the

vehicle for further investigation. He identified the driver of the SUV as Appellant.

Eventually, Appellant told Diaz that Stacy Milligan was a person who was hiding

somewhere on the IAA lot.4 A search of Appellant’s vehicle produced several binoculars,

a two-way radio, a “walkie-talkie,” and a wallet belonging to a Robert Dougherty.5

Appellant was eventually arrested.

2 See TEX. PENAL CODE ANN. § 12.425(a).

3 Welling worked for the owner of IAA. IAA is a “clearing house” for damaged vehicles. It picks up
wrecked cars on behalf of insurance companies and stores them while carriers decide whether to repair
the damaged vehicles or declare them a total loss. If the vehicle was declared a total loss, IAA would assist
in selling the vehicle to a dealer. While the vehicles on the lot were all damaged in some way, IAA was
responsible for any additional damage occurring to those vehicles while they were in its possession.
4 Eventually, Stacy Milligan was discovered on the IAA lot.

5 Appellant told Diaz that Dougherty was her boyfriend.

2
After obtaining the information from Officer Diaz’s interaction with Appellant, the

officers at IAA made a public address announcement for Milligan to surrender. When the

officers received no response, they requested a K-9 unit to assist in searching the IAA

lot. After conducting a search of the lot, officers found a man hiding underneath a truck.

The man was subsequently identified as Robert Dougherty. When Dougherty was found,

there were several catalytic converters on the ground near him that had been forcibly

removed from vehicles on the IAA lot. Dougherty was wearing work gloves and

possessed a “SAWZALL,” which is a saw that is capable of cutting through metal.

Dougherty was arrested.

Appellant was indicted for theft of property having a value of $2,500 or more but

less than $30,000. The indictment further alleged that Appellant had been twice convicted

of state-jail-felony offenses, which would be used to enhance the range of punishment for

the theft charge. When the case was called for trial, on October 2, 2023, Appellant

pleaded not guilty and jury selection began. However, on the second day of trial,

Appellant failed to appear. Through her bond company, Appellant reported that she was

running behind. However, Appellant did not identify a reason for her tardiness. After an

hour past the scheduled start time for trial, the trial court indicated that it would proceed

in Appellant’s absence. Appellant’s counsel orally moved for a continuance and sought

leave from the trial court to forego filing a written motion for continuance. The trial court

found that Appellant voluntarily absented herself from the proceedings and proceeded

with the jury trial in Appellant’s absence.

At the close of the trial, the jury found Appellant guilty of the offense of theft of

property with a value equal to or greater than $2,500 but less than $30,000. A plea of
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“not true” to the enhancement allegations was entered in absentia by the trial court as

Appellant still had not appeared at the trial. After punishment evidence was presented to

the jury, it found the enhancement allegations true and assessed punishment at ten years’

incarceration and a $10,000 fine on October 4, 2023. The trial court pronounced sentence

in open court on October 24, 2023, with Appellant in attendance. The trial court attached

an “Article 42.15 Addendum” to the judgment. This Addendum provides that Appellant

does not presently have sufficient resources or income to immediately pay all or part of

the fine and costs assessed in the judgment but will, in the future, have the ability to pay

the fine and costs. The Addendum also informed Appellant that she will be required to

pay all of the fine and costs upon release from prison and that, if Appellant is unable to

pay the fine and costs upon release, Appellant shall appear before the District Clerk and

make arrangements to pay the fine and costs at designated intervals. Appellant timely

appealed from this judgment.

By her appeal, Appellant presents four issues. By her first issue, Appellant

contends that the trial court abused its discretion when it denied her oral motion for

continuance. Appellant contends, by her second issue, that the evidence was insufficient

to support the jury’s verdict that the value of the property in the instant case was $2,500

or more but less than $30,000, as alleged in the indictment. By her third issue, Appellant

contends that the trial court reversibly erred by denying her request for a lesser-included-

offense instruction. Finally, by her fourth issue, Appellant contends that the trial court

abused its discretion by failing to conduct an on-the-record inquiry into Appellant’s ability

to pay the fine and costs.

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ISSUE ONE: CONTINUANCE

By her first issue, Appellant contends that the trial court abused its discretion when

it denied Appellant’s oral motion for continuance. The State responds contending that

Appellant’s oral motion did not preserve this issue for appellate review. We agree with

the State.

We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. TEX. CODE CRIM. PROC. ANN. art. 29.06; Heiselbetz v. State, 906 S.W.2d 500,

511 (Tex. Crim. App. 1995) (en banc). “To preserve a claim of error based on the denial

of a motion for continuance, the motion must be in writing and sworn.” Brooks v. State,

No. 07-23-00249-CR, 2024 Tex. App. LEXIS 3669, at *3 (Tex. App.—Amarillo May 29,

2024, pet. filed) (mem. op., not designated for publication) (citing TEX. CODE CRIM. PROC.

ANN. arts. 29.03, 29.08). “[I]f a party makes an unsworn oral motion for a continuance

and the trial judge denies it, the party forfeits the right to complain about the judge’s ruling

on appeal.” Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009); see also

State v. Heath, No. PD-0156-22, 2024 Tex. Crim. App. LEXIS 446, at *5 n.11 (Tex. Crim.

App. June 12, 2024) (same). “[A]n unsworn oral motion preserves nothing for appeal.”

Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012). In the present case,

Appellant failed to present a written, verified motion for continuance to the trial court and

this failure forfeits the issue on appeal. See id.; Anderson, 301 S.W.3d at 279.

Consequently, we overrule Appellant’s first issue.

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ISSUE TWO: SUFFICIENCY OF THE EVIDENCE ESTABLISHING THE VALUE OF THE PROPERTY

By her second issue, Appellant contends that the evidence is insufficient to support

the jury’s verdict that the property in the instant case had a value of $2,500 or more but

less than $30,000, as alleged in the indictment. The State points out that Appellant

challenges only the sufficiency of the evidence concerning the value of the property and

not her guilt as a party to the theft, the appropriation of the property, or her criminal intent.

As to the value of the property, the State contends that the evidence established that

there is not a viable market for used catalytic converters and, therefore, the cost of

replacement must be used. Evidence established that the replacement value exceeded

$2,500.

The standard we apply in determining whether the evidence is sufficient to support

a conviction is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). Under that standard, we consider all the evidence in the light most favorable to

the verdict and determine whether, based on the evidence and reasonable inferences

therefrom, a rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Queeman v. State, 520 S.W.3d

616, 622 (Tex. Crim. App. 2017). Sufficiency of the evidence is measured against the

elements of the offense as defined by a hypothetically correct jury charge. Thomas v.

State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997)). In our review, we must evaluate all the evidence in the record,

both direct and circumstantial, regardless of whether that evidence was properly or

improperly admitted. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016);
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Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We are also required to

defer to the jury’s credibility and weight determinations because the jury is the sole judge

of the witnesses’ credibility and the weight to be given their testimony. Winfrey v. State,

393 S.W.3d 763, 768 (Tex. Crim. App. 2013). When the record supports conflicting

inferences, we presume that the jury resolved any conflicts in favor of the verdict and will

defer to that determination. Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App.

2012).

The State alleged that Appellant committed the state-jail-felony offense of theft of

property. As such, it had to prove that the value of the property was between $2,500 and

$30,000. See TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A).6 The value of property is the

fair market value of the property at the time and place of the offense. Id. § 31.08(a)(1).

Ascertainment of fair market value presupposes an existing, established market for the

property. Infante v. State, 404 S.W.3d 656, 661 (Tex. App.—Houston [1st Dist.] 2012, no

pet.). However, if the fair market value cannot be ascertained, value is the cost of

replacing the property within a reasonable time after the theft. TEX. PENAL CODE ANN.

§ 31.08(a)(2).

In the present case, Balente Caballero, a parts consultant with AutoNation, testified

that there is no market for used catalytic converters because catalytic converters cannot

be reused. Shawn Norris, an employee of IAA, testified that IAA is responsible for all of

6 We note that the Legislature amended Penal Code section 31.03 to add language that makes it

a state jail felony whenever the stolen property is a catalytic converter and the cost of replacing the stolen
catalytic converter(s) is less than $30,000. TEX. PENAL CODE ANN. § 31.03(e)(4)(G). However, this
amendment did not become effective until after Appellant was indicted and the State did not seek to amend
its indictment to plead an offense under this amendment.

7
the vehicles stored in its lot and IAA must reimburse the insurance carrier for any damage

done to the vehicle while in its possession. Because the undisputed evidence established

that catalytic converters cannot be reused, a fair market value of the catalytic converters

could not be ascertained. Consequently, evidence regarding the replacement value of

the catalytic converters is sufficient to establish the value of the stolen property. See id.

§ 31.08(a)(2). Felipe Enriquez, an investigator with the Randall County Sheriff’s Office,

testified that replacing the six catalytic converters that were stolen from the IAA lot would

cost, at a minimum, $4,611.96. Caballero testified that it would cost over $4,000 to

replace the two catalytic converters taken from the Ford F-150. Considering all the

evidence in the light most favorable to the verdict, we conclude that the evidence was

sufficient to allow a rational jury to have found that the value of the property exceeded

$2,500 beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Queeman, 520

S.W.3d at 622. Accordingly, we overrule Appellant’s second issue.

ISSUE THREE: LESSER-INCLUDED OFFENSE

By her third issue, Appellant contends that the trial court reversibly erred by

refusing Appellant’s request to charge the jury on the lesser-included offense of attempted

theft. The State responds contending that the law does not require it to prove that the

stolen property was conveyed from the premises and, therefore, Appellant was not

entitled to a lesser-included-offense instruction.

We review a trial court’s refusal to include a lesser-included-offense instruction in

the court’s charge for an abuse of discretion. Manahan v. State, Nos. 07-18-00196-CR,

07-18-00197-CR, 2019 Tex. App. LEXIS 10232, at *3 (Tex. App.—Amarillo Nov. 25,

8
2019, no pet.) (mem. op., not designated for publication) (citing Threadgill v. State, 146

S.W.3d 654, 666 (Tex. Crim. App. 2004) (en banc)). The Court of Criminal Appeals has

identified the two-part process by which we determine whether a defendant was entitled

to a lesser-included-offense instruction.

First, we must determine whether the proof necessary to establish the
charged offense also includes the lesser offense. This is a question of law,
and it does not depend on the evidence to be produced at trial. Second, if
this requirement is met, we must further determine whether there is some
evidence in the record that would permit the jury to rationally find that, if the
defendant is guilty, he is guilty only of the lesser-included offense. Under
this second step, “anything more than a scintilla of evidence may be
sufficient to entitle a defendant to a lesser charge.” A defendant is entitled
to an instruction on a lesser-included offense regardless of whether the
evidence supporting the instruction “is weak, impeached, or
contradicted.” . . . However, “it is not enough that the jury may disbelieve
crucial evidence pertaining to the greater offense, but rather there must be
some evidence directly germane to the lesser-included offense for the finder
of fact to consider before an instruction on a lesser-included offense is
warranted.” Ultimately, the inquiry is whether the evidence establishes the
lesser-included offense as a valid, rational alternative to the charged
offense.

Simms v. State, 629 S.W.3d 218, 222 (Tex. Crim. App. 2021) (internal citations omitted).

The Court of Criminal Appeals has addressed whether attempted theft is a lesser-

included offense of theft. See Bullock v. State, 509 S.W.3d 921, 925 (Tex. Crim. App.

2016). The court explained that:

A person commits the offense of theft if he unlawfully appropriates property
with intent to deprive the owner of the property. TEX. PENAL CODE [ANN.]
§ 31.03(a). “Appropriate” means to acquire or otherwise exercise control
over property other than real property. Id. § 31.01(4)(B). Criminal attempt
occurs when a person, with specific intent to commit an offense, does an
act amounting to more than mere preparation that tends but fails to effect
the commission of the offense intended. Id. § 15.01(a). Thus, to find
appellant guilty only of attempted theft, a jury would be required to
determine that appellant intended to steal the [property], he did an act

9
amounting to more than mere preparation, but he failed to effect the
completed theft—i.e., he failed to unlawfully appropriate the [property] by
failing to acquire it or otherwise exercise control over it.

Id.

Appellant contends that the evidence only demonstrates that the parties to the theft

committed an attempted theft because the catalytic converters were never removed from

IAA’s premises before they were arrested. “[A]sportation—the act of carrying away or

removing property—is not an element of statutory theft.” Hawkins v. State, 214 S.W.3d

668, 670 (Tex. App.—Waco 2007, no pet.) (citing Barnes v. State, 513 S.W.2d 850, 851

(Tex. Crim. App. 1974), among others). Here, the evidence established that Dougherty

removed the catalytic converters from vehicles on the IAA lot with the intent to steal them.

Removing the catalytic converters from the vehicles with the intent to deprive the owner

of them constitutes an appropriation, even though Dougherty did not remove them from

the IAA lot. See Jahanian v. State, No. 14-07-00703-CR, 2009 Tex. App. LEXIS 4352,

at *34 (Tex. App.—Houston [14th Dist.] May 28, 2009, pet. ref’d) (mem. op., not

designated for publication) (control over property with an intent to deprive the owner of it

is sufficient to show appropriation, even though the property was never removed from the

owner’s premises). Consequently, we conclude that the evidence established that

Appellant committed the offense of theft, but there was no evidence that would permit the

jury to rationally find that, if Appellant was guilty, she was guilty only of the lesser-included

offense of attempted theft. We overrule Appellant’s third issue.

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ISSUE FOUR: ON-THE-RECORD INQUIRY INTO ABILITY TO PAY FINE AND COSTS

By her fourth issue, Appellant contends that the trial court abused its discretion by

failing to conduct an on-the-record inquiry into Appellant’s ability to pay the fine and costs

assessed by the judgment and requests that we remand the case to the trial court to

conduct such an inquiry. The State responds contending that the trial court explicitly

found that Appellant lacked the ability to pay all or part of the assessed fine and costs

immediately and, as such, Appellant’s request that the case be abated to the trial court to

hold an on-the-record inquiry would be a waste of time and judicial resources.

This Court has addressed this argument multiple times recently. See Garcia v.

State, No. 07-23-00318-CR, 2024 Tex. App. LEXIS 5554, at *2–3 (Tex. App.—Amarillo

Aug. 2, 2024, no pet. h.) (per curiam) (mem. op., not designated for publication); Cantu

v. State, No. 07-23-00322-CR, 2024 Tex. App. LEXIS 5333, at *3–4 (Tex. App.—Amarillo

July 29, 2024, no pet. h.) (mem. op., not designated for publication); Woodard v. State,

No. 07-23-00377-CR, 2024 Tex. App. LEXIS 4642, at *10–11 (Tex. App.—Amarillo July

2, 2024, no pet. h.) (mem. op., not designated for publication); Lucero v. State, No. 07-

23-00444-CR, 2024 Tex. App. LEXIS 4558, at *3–4 (Tex. App.—Amarillo June 27, 2024,

pet. filed) (mem. op., not designated for publication); Luna v. State, Nos. 07-23-00139-

CR, 07-23-00140-CR, 2024 Tex. App. LEXIS 3823, at *4–6 (Tex. App.—Amarillo June 3,

2024, pet. filed) (mem. op., not designated for publication); Bruedigam v. State, No. 07-

23-00429-CR, 2024 Tex. App. LEXIS 3644, at *4–5 (Tex. App.—Amarillo May 28, 2024,

no pet.) (mem. op., not designated for publication); Sparks v. State, No. 07-23-00215-

CR, 2024 Tex. App. LEXIS 2574, at *6–7 (Tex. App.—Amarillo Apr. 12, 2024, no pet.)

(mem. op., not designated for publication); Mayo v. State, 690 S.W.3d 103, 105–06 (Tex.
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App.—Amarillo 2024, pet. filed) (op. on reh’g); Stanberry v. State, No. 07-23-00194-CR,

2024 Tex. App. LEXIS 1066, at *4–7 (Tex. App.—Amarillo Feb. 9, 2024, pet. filed) (mem.

op., not designated for publication). Our analysis in each of these cases has been

consistent. Nonetheless, appellants continue to challenge the trial court’s failure to hold

an on-the-record inquiry into the defendant’s ability to pay a fine and costs in

circumstances where the trial court does not order the defendant to immediately pay the

fine and costs. To provide additional clarity regarding this issue, we will attempt to

elucidate the basis of our analysis in the above-cited cases.

Article 42.15 of the Texas Code of Criminal Procedure provides that, during or

immediately after imposing sentence, a trial court “shall inquire on the record whether the

defendant has sufficient resources or income to immediately pay all or part of the fine and

costs.” TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1). We have construed this on-the-

record inquiry requirement necessitated whenever a trial court orders a defendant to

“immediately pay all or part of the fine and costs.” Id. (emphasis added). Thus, it would

be error for a trial court to order a defendant to immediately pay all or part of a fine and

costs without first holding an on-the-record inquiry into the defendant’s present ability to

pay that fine and costs.

However, when, as here, the trial court finds that the defendant does not have the

present ability to pay all or part of the fine and costs, but the record does not reflect that

it inquired into the defendant’s ability to pay the fine and costs, we have determined that

“it is evident from the finding that the trial court determined that Appellant did not have

sufficient resources or income to do so.” Stanberry v. State, 2024 Tex. App. LEXIS 1066,

at *6. Remanding to the trial court to reach this same conclusion after an on-the-record
12
inquiry would be “gratuitous” and would be an “unnecessary exercise and a waste of

judicial resources.” Id. (citing Sloan v. State, 676 S.W.3d 240, 242 (Tex. App.—Tyler

2023, no pet.). Consequently, Appellant in the present case, like those appellants in the

cases cited above, has wholly failed to identify how she has been harmed by the trial

court failing to inquire, on the record, into her present ability to pay the judgment’s fine

and costs when the court has not ordered her to immediately pay all or part of the fine or

costs.

“If the court determines that the defendant does not have sufficient resources or

income to immediately pay all or part of the fine and costs, the court shall determine

whether the fine and costs should be: (1) subject to Subsection (c),7 required to be paid

at some later date or in a specified portion at designated intervals . . . .” TEX. CODE CRIM.

PROC. ANN. art. 42.15(a-1) (emphasis added). Here, the trial court determined that

Appellant does not have sufficient resources or income to immediately pay all or part of

the fine and costs. Article 42.15(a-1) authorizes the trial court to order that the fine and

costs “be paid at some later date . . . .” Id. Appellant does not challenge the trial court’s

authority to order payment of the fine and costs in the future. The trial court in the present

case ordered Appellant to pay all of the fine and costs to the District Clerk upon release

on parole or completion of her sentence, as authorized by article 42.15(a-1). The trial

court also explicitly notified Appellant that, if she is unable to pay all of the fine and costs

upon release, she shall appear before the District Clerk and make arrangements to pay

the fine and costs at designated intervals. This is consistent with the procedure provided

7 Article 42.15(c) addresses the imposition of a fine and costs in a misdemeanor case, which is not

applicable to the present case.

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in the Texas Code of Criminal Procedure. See id. art. 43.035(a), (b)(1) (if defendant

voluntarily appears and informs court or clerk that defendant has difficulty paying fine and

costs as required by judgment, court shall hold hearing to determine whether that portion

of judgment imposes undue hardship on defendant).8 If, at that time, the trial court

determines that undue hardship exists, it shall consider whether the fine and costs should

be satisfied through a different method. See id. art. 43.035(c).

For the foregoing reasons, we conclude that Appellant has failed to show that the

trial court abused its discretion in ordering Appellant to pay the fine and costs upon her

release from custody. As such, we overrule Appellant’s fourth issue.

CONCLUSION

Having overruled each of Appellant’s issues, we affirm the judgment of the trial

court.

Judy C. Parker
Justice

Publish.

8 We note that there are exceptions to the requirement that the trial court hold a hearing. See id.
art. 43.035(d).

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