Lang v. State
| Decision Date | 24 August 2022 |
| Docket Number | PD-1124-19 |
| Parties | TERRI REGINA LANG, Appellant v. THE STATE OF TEXAS |
| Court | Texas Court of Criminal Appeals |
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS BURNET COUNTY
Walker, J., delivered the opinion of the Court, in which Keller, P.J., and Hervey, Richardson, Newell, Keel, and Slaughter, JJ., joined. McClure, J., concurred in the result. Yeary, J., filed a dissenting opinion.
Appellant Terri Regina Lang was convicted of organized retail theft (ORT). This Court subsequently found the evidence insufficient to support Appellant's ORT conviction and remanded the case to the Third Court of Appeals to determine whether the judgment of conviction should be reformed to a lesser-included offense. The court of appeals found that reformation was not available, and the State filed a petition for discretionary review. Because the existence of an owner is a statutory element of theft, but the identity of the owner is not, theft is a lesser-included offense of ORT in this case, and Appellant's conviction meets the Thornton reformation standards. We reverse the judgment of the court of appeals, modify the judgment to reflect a conviction for theft, and remand the case to the trial court for a new sentencing hearing.
We laid out the factual details of Appellant's underlying ORT conviction in our prior opinion. See Lang v. State, 561 S.W.3d 174, 176-77 (Tex. Crim. App. 2018) (Lang I).[1] To summarize, Appellant shoplifted $565.59 worth of items from HEB. She was charged with ORT under the 2011 version of Texas Penal Code § 31.16(b)(1), (c)(3).[2] The indictment alleged that Appellant conducted, promoted, or facilitated an activity in which she received, possessed, concealed, or stored stolen retail merchandise valued at $500 or more but less than $1,500, and it described the stolen property. The indictment did not allege the owner of the stolen property, although at trial the State showed that HEB was the owner of the stolen merchandise. Appellant was convicted, and the court of appeals affirmed her conviction.
We granted Appellant's petition for discretionary review which challenged, among other things, the appellate court's conclusion that the ORT statute permits a conviction for "committing ordinary shoplifting while acting alone[.]" Lang I, 561 S.W.3d at 178 n.3. Ultimately, we held that ORT "requires proof of . . . some activity distinct from the mere activity inherent in the ordinary shoplifting of retail items by a single actor." Id. at 183. In other words, ORT "requires proof of some activity that is distinct from the act of theft itself." Id. at 179. Because the State failed to show that Appellant did anything more than shoplift, we held that the evidence was insufficient to support Appellant's conviction, and we remanded the case to the appellate court to determine if the conviction should be reformed to a lesser-included offense. Id. at 183-184.
On remand, the court of appeals considered whether Appellant's conviction could be reformed to either attempted ORT or theft. Lang v. State, 586 S.W.3d 125, 130 (Tex. App.-Austin 2019) (Lang II). First, considering reformation to attempted ORT, the appellate court noted that attempt requires "'specific intent to commit an offense,"' along with an act that is "'more than mere preparation that tends but fails to effect the commission of the offense intended."' Id. (quoting Tex. Penal Code Ann. § 15.01(a)). The court found the record contained "no evidence" 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."' Id. at 131 (quoting Lang I, 561 S.W.3d at 183). The State and Appellant "agree[d], 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." Id. Thus, the court of appeals concluded that the ORT conviction could not be reformed to an attempted ORT conviction. Id.[3] The court of appeals then considered whether reformation to theft was appropriate. Id. Appellant conceded that the evidence produced at trial "is sufficient to show that she committed the offense of theft of property." Id.; see also Tex. Penal Code Ann. § 31.03 (theft statute). However, Appellant argued-and the court of appeals agreed-that theft is "not a lesser-included offense of the charged organized retail theft[,]" making reformation to theft impossible. Lang II, 586 S.W.3d at 136. To reach this conclusion, the court of appeals relied on our opinion in Byrd v. State[4] and found that "the identity of the property owner" is a "theft element missing from the indictment for organized retail theft[.]" Id. at 134. The appellate court stated:
[W]hile it is true that the offense of organized retail theft involves stolen retail merchandise, the general status of the property as stolen retail merchandise does not designate or specify the particular retail establishment from which the merchandise came. The identity of the particular retail establishment from which the merchandise came-that is, the owner of the stolen retail merchandise-is not a required element of the offense of organized retail theft. It matters not which retail establishment the merchandise came from (HEB, Target, Walmart, etc.); the State must only prove that the property at issue is stolen retail merchandise. While the State could prove the identity of the particular retail establishment from which the merchandise was stolen in order to show that the retail merchandise at issue is stolen . . . the State is not required to do so.
Id. at 135 (emphasis in original). Since the court of appeals found that the identity of the property owner was not reflected in Appellant's indictment, the court concluded that theft could not be a lesser-included offense of ORT as charged, and reformation was deemed unavailable. Id. at 135- 36. The court of appeals rendered a judgment of acquittal. Id. at 136.
We granted the State's petition for discretionary review to determine whether the appellate court was correct in holding that Appellant's ORT conviction cannot be reformed to theft.[5] A conviction may only be reformed to lesser-included offenses of the crime the appellant was convicted of. Accordingly, we must determine whether theft is a lesser-included offense of ORT in this case and whether reformation is available. We will reverse and hold that theft is a lesser-included offense of ORT in this case and Appellant's conviction can be reformed.
Under Thornton v. State, after a court of appeals has determined that evidence is insufficient to support a conviction, the court may reform the judgment to reflect a conviction for a lesser-included offense. 425 S.W.3d 289, 299-300 (Tex. Crim. App. 2014). This is known as reformation. The purpose of reformation is "to avoid the 'unjust' result of an outright acquittal[.]" Id. at 300. The use of reformation is limited to convicting for lesser-included offenses-not different offenses altogether. Id. at 298-99 (); Walker v. State, 594 S.W.3d 330, 340 (Tex. Crim. App. 2020) ("[R]eformation is proper when the 'lesser included' offense is authorized by the indictment[.]"). This limitation helps prevent the court from wholly usurping the prosecution's charging power. See Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004) () (quoting State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex. 1992)).
After finding the evidence insufficient to support an appellant's conviction and determining that the offense the conviction is potentially being reformed to is a lesser-included of the charged offense, reformation to the lesser-included offense is required[6] if the reviewing court can answer yes to two questions:
1) in the course of convicting the appellant of the greater offense, must the jury have necessarily found every element necessary to convict the appellant for the lesser-included offense; and 2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support a conviction for that offense?
Thornton, 425 S.W.3d at 300; see also Walker, 594 S.W.3d at 338. "If the answer to either of these questions is no, the [reviewing court] is not authorized to reform the judgment" and should acquit. Thornton, 425 S.W.3d at 300.
These Thornton questions help prevent "arbitrary deprivation of liberty based upon charges never filed while also ensuring that the State carries its burden to prove each element of the charged offense beyond a reasonable doubt." Walker, 594 S.W.3d at 338. Moreover, the standards serve to "give effect" to the verdict "by tying reformation to what the jury necessarily found when it reached that verdict." Id.
In summary, when reformation is permissible, it proceeds as follows:
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