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Click here for the full text of this decision FACTS:On June 7, 2002, a Midland police officer, Gary Kennedy, found a juvenile R.J.R. sitting in a parked car in a high crime area past curfew. Kennedy conducted a pat-down search and found a plastic bag that contained marijuana. Kennedy arrested R.J.R. On Oct. 10, 2002, two undercover police officers, Steven McNeill and Margarita Venegas, got a dispatch while they were staking out an area for auto burglaries that a male wearing dark clothes was prowling the neighborhood, looking into cars. Venegas spotted R.J.R., wearing dark clothes, riding a bicycle. When Venegas identified herself as a police officer, R.J.R. rode away from her. McNeill attempted to block R.J.R.’s path, but R.J.R. evaded him. According to McNeill, he then pulled R.J.R. off the bike. Then, he and Venegas wrestled with R.J.R. to pat him down. R.J.R.’s pockets were stuffed with radios, cell phones, a Playboy magazine, a CD, marijuana, a marijuana pipe, a cigarette lighter, an empty plastic bag and a fart machine. Several car owners said the items belonged to them and had been stolen out of their cars. Officers arrested R.J.R. A Midland detective, Richard Faulkenberry, found that R.J.R.’s fingerprints were found in three auto burglaries, including two thefts that involved firearms. Eleven charges were brought against R.J.R. A possession of marijuana charge dated back to the June 7 event. The resisting arrest, possession of a usable amount of marijuana, and two of the burglary of a vehicle counts were dated to Oct. 10. In addition, there were two theft of a firearm charges and a burglary of a vehicle charge dated Sept. 19., and a burglary of a vehicle charge on Oct. 4. R.J.R. pleaded guilty to the Oct. 10 burglary of a vehicle charges. He then moved to suppress the evidence seized on that same day. The trial court denied the motion. The trial court also denied R.J.R.’s subsequent motion to suppress the evidence seized during on June 7. The jury heard testimony from the officers involved in R.J.R.’s arrest on June 7 and Oct. 10, as well as police officers who responded to auto burglaries on earlier dates, auto theft victims and an identification specialist. R.J.R. also testified that he broke into some vehicles in October. He explained that he would go from car to car on each side of the street, checking to see if they were locked. If they were unlocked, he would take small items from inside and later sell them to his friends. R.J.R. admitted to having a usable amount of marijuana at the June episode, but denied having a usable amount when he was stopped on Oct. 10. The jury convicted R.J.R. on all counts and sentenced R.J.R. to the Texas Youth Commission. R.J.R. appeals the denials of his two motions to suppress. He also challenges the sufficiency of the evidence for the rest of his conviction. HOLDING:Affirmed. As to the motions to suppress, R.J.R. testified at trial regarding the information and evidence he attempted to suppress with his motion. R.J.R. testified that he was in fact in possession of the marijuana on June 7 and Oct. 10, and that he was in possession of the alleged stolen items on Oct. 10. In providing such testimony, R.J.R. established facts consistent with those he tried to suppress, so the court rules R.J.R. has waived such issues on appeal. The court reviews the sufficiency of the evidence on whether R.J.R. resisted arrest. McNeill testified that he had to pull R.J.R. off of his bicycle to keep him from running away. Venegas testified that R.J.R. swung his arms at her, pulled away from her and used profanity. On the other hand, R.J.R. claims McNeill threw him to the ground for no reason and that R.J.R. did not fight back. The court concludes that the evidence was legally sufficient to support the trial court’s finding that R.J.R. evaded and resisted arrest. The court next addresses R.J.R.’s contention that there has been a double jeopardy problem with his case. He argues that the two counts for theft of a firearm are lesser-included offenses of the counts for burglary of a car with the intent to commit theft charges. The court finds that R.J.R. did not make a timely request, objection or motion for new trial, therefore R.J.R. waived his right to raise the double jeopardy argument on appeal unless he can show that the alleged violation of the double jeopardy clause was apparent on its face. The court says there is no apparent violation. It is unnecessary to prove that the crime of theft happened to obtain a conviction for burglary with the intent to commit theft, as R.J.R. was charged with in this case. Theft is not a lesser included offense of burglary with the intent to commit theft because it does not include the same elements. Consequently, there was no double jeopardy with regard to the theft and burglary offenses. OPINION:Chew, J.; Barajas, C.J., McClure, and Chew, JJ.

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