Bullock v. State

• Decision Date: 14 December 2016
• Docket Number: NO. PD–1453–15,PD–1453–15
• Citation: 509 S.W.3d 921
• Parties: Henry Richard BULLOCK, Jr., Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

509 S.W.3d 921

Henry Richard BULLOCK, Jr., Appellant

v.The STATE of Texas

NO. PD–1453–15

Court of Criminal Appeals of Texas.

Delivered: December 14, 2016

Rehearing Overruled March 1, 2017

Dissenting Opinion on Denial of Rehearing March 1, 2017

Lisa McMinn, Melissa P. Hervey, for State of Texas.

Nicolas Hughes, for Richard Henry Bullock.

OPINION

Alcala, J., delivered the opinion of the Court in which Johnson, Keasler, Richardson, and Yeary, JJ ., joined.

Henry Richard Bullock, Jr.,¹ appellant, was convicted by a jury of the offense of theft of a furniture delivery truck, a third-degree felony. In his sole ground in his petition for discretionary review, appellant contends that the court of appeals erred by upholding the trial court's decision that had declined his request for a lesser-included-offense jury instruction on attempted theft. We agree with appellant that there is more than a scintilla of evidence in the record from which a rational fact finder could have found that he was guilty only of attempted theft of the truck, rather than theft, and thus the court of appeals erred by concluding that the trial court properly declined to give the lesser-included-offense instruction. We, therefore, reverse the judgment of the court of appeals, and we remand this case to that court for it to consider in the first instance whether the trial court's failure to give a lesser-included-offense instruction on attempted theft harmed appellant.

I. Background

One day in September 2013, appellant entered the cab of a large eighteen-wheel delivery truck that Roy Martinez and Miguel Hernandez were using to deliver furniture to an apartment. While he was inside the truck's cargo space, Martinez heard the engine start and felt it revved several times. However, the truck did not move because the air brake was engaged. Martinez went to the cab to investigate and discovered appellant. Martinez observed that appellant's hands were on the steering wheel with his foot pushing the gas and brake pedals. When confronted by Martinez, appellant jumped from the truck and ran away. Martinez and Hernandez chased after and subdued appellant until police arrived and arrested him. The State charged appellant with third-degree-felony theft of the truck, property worth at least $20,000 but not more than $100,000, enhanced by two prior felony convictions. See TEX. PENAL CODE § 31.03(a), (e)(5) (West 2014). Appellant pleaded not guilty.

At his trial, appellant testified that he was inside the cab of the truck, but he denied having any intent to steal the truck, pressing the gas or brake pedals, turning on the engine, or attempting to start or move the truck.² Appellant acknowledged that he had an intent to commit theft while he was inside the truck's cab, but claimed that he wanted to steal only small items like cash or electronics, rather than the truck itself. Appellant requested a lesser-included-offense instruction on attempted theft of the truck, but the trial court denied the request. In explaining the basis for his ruling, the trial judge stated, "And I believe your own testimony that you did not wish to steal the truck but rather to steal something else I believe precludes attempted theft also from being included in the charge. So that's denied." The jury convicted appellant of theft of the truck. Appellant was sentenced to thirty years in prison after the two punishment enhancement paragraphs were found true.

On appeal, the court of appeals upheld the trial court's ruling. Bullock v. State , 479 S.W.3d 422, 430 (Tex. App.–Houston [14th Dist.] 2015)(substitute op., orig. op. withdrawn). It explained that appellant was not entitled to a lesser-included-offense instruction because there was "no evidence" in the record that would have allowed the jury to find appellant guilty of attempted theft "as a valid, rational alternative to the theft of the truck." Id. In reaching that conclusion, the majority opinion relied on appellant's denial of any intent to steal the truck and on a line of cases that had indicated that the evidence is sufficient to establish theft when a defendant is behind the wheel of a vehicle without permission, regardless of whether the vehicle could be started or moved. Id. One justice dissented, concluding that the relevant question is "whether any evidence from any source raises the issue." Id. at 431 (McCally, J., dissenting). She explained that, because the jury was free to believe some of appellant's testimony while disbelieving other parts of it, the jury could rationally have found appellant guilty only of attempted theft if it (1) believed appellant's testimony that he did not exercise control over the truck, (2) disbelieved his testimony that he never intended to steal the truck, and (3) inferred from the other evidence in the record that appellant did have the intent to commit theft of the truck. See id . at 431–32 (concluding that the jury "could have found appellant guilty of attempted theft because there was more than a scintilla of evidence that he (1) intended to steal the truck, (2) did an act amounting to more than mere preparation, and (3) failed to effect the commission of the offense because he failed to exercise control over the truck").

II. Analysis

In his petition for discretionary review, appellant argues that the dissenting opinion in the court of appeals was correct and that the majority opinion in that court erroneously applied a sufficiency-of-the-evidence standard in assessing his charge-error complaint instead of applying the established two-part test in Hall v. State to determine whether a lesser-included-offense instruction should be given. See Hall v. State , 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). After addressing the Hall test and the elements of attempted theft, we examine the evidence to determine whether it meets that test.

A. Analysis of the Applicable Law on Lesser–Included–Offense Instructions

The two-step test for determining whether a trial court is required to give a requested instruction on a lesser-included offense is well established. We discuss that law in the context of appellant's charged offense of theft and his request for a lesser-included-offense instruction for attempted theft.

The first step is to determine whether the requested instruction pertains to an offense that is a lesser-included offense of the charged offense, which is a matter of law. Id. Under this first step of the test, an offense is a lesser-included offense if it is within the proof necessary to establish the offense charged. Sweed v. State , 351 S.W.3d 63, 68 (Tex. Crim. App. 2011) ; see also TEX. CODE CRIM. PROC. art. 37.09. In this case, the first step is easily established because, as a matter of law, an attempt to commit the charged offense, attempted theft, is a lesser-included offense of the charged offense of theft. TEX. CODE CRIM. PROC. art. 37.09(4).

The second step in the analysis asks whether there is evidence in the record that supports giving the instruction to the jury. Sweed, 351 S.W.3d at 68. Under this second step, a defendant is entitled to an instruction on a lesser-included offense when there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense. Rice v. State , 333 S.W.3d 140, 145 (Tex. Crim. App. 2011) (citations omitted). The evidence must establish that the lesser-included offense is a valid, rational alternative to the charged offense. Id.

More particularly, the second step requires examining all the evidence admitted at trial, not just the evidence presented by the defendant. Goad v. State , 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). The entire record is considered; a statement made by the defendant cannot be plucked out of the record and examined in a vacuum. Enriquez v. State , 21 S.W.3d 277, 278 (Tex. Crim. App. 2000). Anything more than a scintilla of evidence is adequate to entitle a defendant to a lesser charge. Sweed , 351 S.W.3d at 68. Although this threshold showing is low, 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. Id. "However, we may not consider the credibility of the evidence and whether it conflicts with other evidence or is controverted." Goad , 354 S.W.3d at 446–47. "Accordingly, we have stated that the standard may be satisfied if some evidence refutes or negates other evidence establishing the greater offense or if the evidence presented is subject to different interpretations." Sweed , 351 S.W.3d at 68.

In considering whether a lesser offense is a valid, rational alternative to the charged offense, we must compare the statutory requirements between the greater offense—here, theft—and the lesser offense—here, attempted theft—to determine whether evidence exists to support a conviction for attempted theft but not theft. Id. A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of the property. TEX. PENAL CODE § 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 truck, he did an act amounting to more than mere preparation, but he failed to effect the completed theft—i.e., he failed to unlawfully appropriate the truck by failing to acquire it or otherwise exercise control over it.

B. Analysis of Evidence Supporting Attempted Theft and Showing that a...