L.B. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-09-00406-CR Elroy Smith, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT NO. D-1-DC-08-206744, HONORABLE JON N. WISSER, JUDGE PRESIDING MEMORANDUM OPINION A jury convicted Elroy Smith of theft, third offense, after he removed a tool set valued at more than $50 and less than $500 from a Sears store. See

Tex. Penal Code Ann. § 31.03(e)(4)(D) (West Supp. 2009). The trial court assessed punishment at 23 months’ imprisonment. See

id.

Smith appeals, arguing in one point of error that…