Lang v. State, 03-15-00332-CR

• Decision Date: 27 September 2019
• Docket Number: NO. 03-15-00332-CR,03-15-00332-CR
• Parties: Terri Regina LANG, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

586 S.W.3d 125

Terri Regina LANG, Appellant

v.The STATE of Texas, Appellee

NO. 03-15-00332-CR

Court of Appeals of Texas, Austin.

Filed: September 27, 2019

Discretionary Review Granted March 11, 2020

Justin Bradford Smith, Temple, for Appellant.

Stacey M. Soule, Gary W. Bunyard, Liberty, R. Blake Ewing, for Appellee.

Before Justices Goodwin, Baker, and Kelly

OPINION

Melissa Goodwin, Justice

A jury convicted appellant Terri Regina Lang of the offense of organized retail theft involving merchandise valued at $500 or more but less than $1,500, see Tex. Penal Code § 31.16(b)(1), (c)(3), and the trial court assessed her punishment at confinement for 20 months in a state jail facility, see id. §§ 31.16(c)(3), 12.35. On original submission, this Court rejected appellant's challenge to the sufficiency of the evidence supporting her conviction, concluding that the organized retail theft statute permitted conviction of a person engaged in ordinary shoplifting acting alone. Lang v. State , No. 03-15-00332-CR, 2017 WL 1833477, at *3–7 (Tex. App.—Austin May 5, 2017) (mem. op., not designated for publication), rev'd and remanded , 561 S.W.3d 174 (Tex. Crim. App. 2018).

On discretionary review, the Court of Criminal Appeals disagreed and concluded that "the organized retail theft statute was not intended to apply to the conduct of an ordinary shoplifter acting alone" and, therefore, "requires proof of conducting, promoting, or facilitating some activity distinct from the mere activity inherent in the ordinary shoplifting of retail items by a single actor." Lang v. State , 561 S.W.3d 174, 183 (Tex. Crim. App. 2018). Because no such evidence was presented in this case, the court held that the evidence was legally insufficient to support appellant's conviction for the offense of organized retail theft, reversed our judgment, and remanded the case for this Court "to consider whether the judgment of conviction should be reformed to any lesser included offense." Id. at 184. On remand, we will reverse the trial court's judgment of conviction and render an acquittal.

DISCUSSION¹

When evidence has been found to be insufficient to support a conviction, reformation of the judgment of conviction to a lesser-included offense is required when: (1) in the course of convicting appellant of the greater offense, the jury necessarily found every element needed to convict the appellant of the lesser-included offense, and (2) the evidence that was presented at the appellant's trial is sufficient to support a conviction on that lesser-included offense. Rabb v. State , 483 S.W.3d 16, 21 (Tex. Crim. App. 2016) ; Thornton v. State , 425 S.W.3d 289, 299–300 (Tex. Crim. App. 2014).

As an initial matter, we observe that when the evidence is found to be insufficient for the convicted offense, this Court's authority to reform a judgment of conviction is limited to lesser-included offenses of the offense of conviction. See Thornton , 425 S.W.3d at 298–99 (observing that appellate courts "should limit the use of judgment reformation to those circumstances when what is sought is a conviction for a lesser offense whose commission can be established from facts that the jury actually found") (emphasis added); cf. Arteaga v. State , 521 S.W.3d 329, 340 (Tex. Crim. App. 2017) (recognizing that rationale for Bowen and its progeny is that "a defendant should not receive the unjust windfall of an outright acquittal when there is legally sufficient evidence to prove that he is guilty of a lesser-included offense ") (emphasis added). Thus, before we address the two inquiries relevant to determining whether to reform the judgment of conviction in this case, see Rabb , 483 S.W.3d at 21 ; Thornton , 425 S.W.3d at 299–300, we must examine whether the proposed offenses are lesser-included offenses.² In our analysis, we consider judgment reformation for two offenses: attempted organized retail theft and theft of property.

Attempted Organized Retail Theft

A person commits the offense of criminal attempt "if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Tex. Penal Code § 15.01(a). As a matter of law, criminal attempt is a lesser-included offense of a completed offense. See Tex. Code Crim. Proc. art. 37.09(4) ("An offense is a lesser included offense if it consists of an attempt to commit the offense charged or an otherwise included offense."). However, when considering judgment reformation, appellate courts must still analyze whether, in the course of convicting the appellant of the greater offense, the jury necessarily found every element necessary to convict the appellant for the lesser-included offense. Rabb , 483 S.W.3d at 22 ; see Thornton , 425 S.W.3d at 300–01. The parties agree, though for different reasons, that reformation of the judgment of conviction in this case to the lesser-included offense of attempted organized retail theft is not appropriate. We agree.

No evidence in this case demonstrates that, with specific intent to commit "some activity undertaken with respect to stolen retail merchandise that goes beyond the conduct inherent in ordinary shoplifting," see Lang , 561 S.W.3d at 183, appellant committed an act that tended but failed to effect the commission of organized retail theft. That is, there is no evidence in this case that appellant's actions tended but failed to effect the commission of any activity "distinct from the mere activity inherent in the ordinary shoplifting of retail items by a single actor." See id. Consequently, the record does not support a finding that in the course of convicting appellant of organized retail theft, the jury necessarily found every element needed to convict appellant of attempted organized retail theft. Further, the evidence that was presented at appellant's trial was not sufficient to support a conviction for attempted organized retail theft. Because the answer to both judgment-reformation inquiries is no, we are not authorized to reform the judgment of conviction in this case to reflect a conviction for attempted organized retail theft. See Thornton , 425 S.W.3d at 300.

Theft of Property

Appellant concedes that, viewed in the light most favorable to the prosecution, the evidence—which showed that she stole items from HEB by placing them in her reusable shopping bag, failing to pay for those items in the checkout line, and then attempting to leave the store while still possessing the items—is sufficient to show that she committed the offense of theft of property. See Tex. Penal Code § 31.03(a). The question, however, is whether theft of property is a lesser-included offense of organized retail theft.

To determine whether an offense qualifies as a lesser-included offense, we employ the cognate-pleadings approach. Bien v. State , 550 S.W.3d 180, 185 (Tex. Crim. App.), cert. denied , ––– U.S. ––––, 139 S. Ct. 646, 202 L.Ed.2d 496 (2018) ; see Hall v. State , 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). Under this approach, we compare the elements of the greater offense as pled to the statutory elements of the potential lesser-included offense in the abstract. Safian v. State , 543 S.W.3d 216, 220 (Tex. Crim. App. 2018) ; Hall , 225 S.W.3d at 535. We ask "whether the lesser-included offense is included within the proof necessary to establish the offense charged." Safian , 543 S.W.3d at 219–20 (quoting Rice v. State , 333 S.W.3d 140, 144 (Tex. Crim. App. 2011) ); Hall , 225 S.W.3d at 536 ; see Tex. Code Crim. Proc. art. 37.09(1) ("An offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]"). This analysis is a question of law and does not depend on the evidence to be produced at trial. Safian , 543 S.W.3d at 220 ; Ex parte Castillo , 469 S.W.3d 165, 169 (Tex. Crim. App. 2015) ; Rice , 333 S.W.3d at 144.

An offense is a lesser-included offense of another offense if the indictment for the charged offense "either: (1) alleges all of the elements of the lesser-included offense, or (2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced." Safian , 543 S.W.3d at 220 (quoting Ex parte Watson , 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh'g) (per curiam)); Rice , 333 S.W.3d at 144. "[T]he elements of the lesser-included offense do not have to be pleaded in the indictment if they can be deduced from facts alleged in the indictment." Safian , 543 S.W.3d at 220 (quoting State v. Meru , 414 S.W.3d 159, 162 (Tex. Crim. App. 2013) ); accord Bien , 550 S.W.3d at 185–86.

When there are allegations in the indictment that are not identical to the elements of the lesser offense, a court should apply the functional-equivalence test to determine whether elements of the lesser offense are functionally the same or less than those required to prove the charged offense. Safian , 543 S.W.3d at 220 ; Cavazos v. State , 382 S.W.3d 377, 384 (Tex. Crim. App. 2012) ; see Bien , 550 S.W.3d at 186. An element of the lesser-included offense is functionally equivalent to an allegation in the charged greater offense if the statutory elements of the lesser offense can be deduced from the elements and descriptive averments in the indictment for the charged greater offense. Safian , 543 S.W.3d at 220 ; McKithan v. State , 324 S.W.3d 582, 588–89 (Tex. Crim. App. 2010).

As charged in this case, a person commits the offense of organized retail theft "if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, [or] stores ... stolen retail merchandise." Tex. Penal Code § 31.16(b)(1). Theft of property occurs when an individual unlawfully appropriates property with intent to deprive the...