                                   NO. 12-13-00158-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

LATRICIA SHEREE HICKS,                           §      APPEAL FROM THE 114TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
          Latricia Sheree Hicks appeals her conviction for theft, for which she was sentenced to
confinement for eighteen months. In one issue, Appellant argues that the trial court erred in
denying her request to include in its charge the lesser included offense of attempted theft. We
affirm.


                                          BACKGROUND
          On September 27, 2012, Appellant entered a Body Central clothing store located in the
Broadway Square Mall in Tyler, Texas. Brandi Clawson, the store manager, greeted Appellant
and noticed that Appellant put her head down and began to walk toward the back of the store.
Clawson suspected that something was amiss and called mall security as she followed Appellant.
Clawson observed Appellant pick up a shirt and drape it over her arm. Clawson further noticed
that Appellant’s hand was concealed on the left side of the shirt where the theft protection device
was located. Next, Clawson heard the distinctive sound of a theft protection device’s being
broken before she saw Appellant put the shirt onto a clothes rack and continue toward the back
of the store where jewelry was displayed.
          Clawson examined the discarded shirt and saw the ink spot left by the breached theft
protection device. At this point, the security officer, Garret Miller, arrived on the premises.
Miller and Clawson confronted Appellant, who was walking toward the exit, and told her the
police were en route. In response, Appellant moved away from them and stood behind a rack.
Clawson saw Appellant reach into her purse, but did not see what was in her hand when she
withdrew it. She did, however, hear the sound of something plastic landing on the marble floor.
She approached Appellant and discovered on the floor next to her a bracelet and earrings she
recognized as belonging to the store. From his vantage point, Miller saw Appellant remove the
bracelet and earrings from her purse and attempt to place them on the clothing rack before the
items fell to the floor.
        When Tyler police officers arrived at the scene, they checked Appellant’s identification
and determined she previously had been convicted of two instances of theft. After the officers
spoke to Clawson, they arrested Appellant for theft.
        Appellant was charged by indictment for felony theft and pleaded “not guilty.” The
matter proceeded to a jury trial. At trial, Appellant requested that the trial court instruct the jury
on the lesser included charge of attempted theft. The trial court denied Appellant’s request.
Ultimately, the jury found Appellant “guilty” as charged. Following a trial on punishment, the
jury assessed Appellant’s punishment at confinement for eighteen months.             The trial court
sentenced Appellant accordingly, and this appeal followed.


                                   LESSER INCLUDED OFFENSE
        In her sole issue, Appellant argues that the trial court erred in denying her request to
include in its charge the lesser included offense of attempted theft.
Standard of Review and Governing Law
        Article 36.14 of the code of criminal procedure requires the trial court to deliver to the
jury “a written charge distinctly setting forth the law applicable to the case . . . .” TEX. CODE
CRIM. PROC. ANN. art. 36.14 (West 2007); Williams v. State, 314 S.W.3d 45, 49 (Tex. App.–
Tyler 2010, pet. ref’d). Upon the defendant's request, a trial court must include a lesser included
offense instruction in the jury charge if the offense is a lesser included offense and there is some
evidence that, if the defendant is guilty, she is guilty only of the lesser offense. See Guzman v.
State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006).
        An offense is a lesser included offense if (1) it is established by proof of the same or less
than all the facts required to establish the commission of the offense charged; (2) it differs from



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the offense charged only in the respect that a less serious injury or risk of injury to the same
person, property, or public interest suffices to establish its commission; (3) it differs from the
offense charged only in the respect that a less culpable mental state suffices to establish its
commission; or (4) it consists of an attempt to commit the offense charged or an otherwise
included offense. See TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006); see also Hall v.
State, 225 S.W.3d 524, 527 (Tex. Crim. App. 2007).
       Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a
charge on the lesser offense. Hall, 225 S.W.3d at 536. “[I]t 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.” See Hampton v. State, 109 S.W.3d
437, 441 (Tex. Crim. App. 2003).
       We review all evidence presented at trial to make this determination. See Rousseau v.
State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). If the evidence raises the issue of a lesser
included offense, a jury charge must be given based on that evidence “whether [the evidence
supporting it was] produced by the State or the defendant and whether it be strong, weak,
unimpeached, or contradicted.” Id. at 672.
       In the instant case, the State concedes that attempted theft is a lesser included offense of
theft. See TEX. CODE CRIM. PROC. ANN. art 37.09(4). Thus, in our analysis, we focus on
whether there is any evidence of record that would permit a rational jury to find that the
defendant is guilty of attempted theft, but not theft.
Theft versus Attempted Theft
       A person commits the offense of theft if she unlawfully appropriates property with intent
to deprive the owner of the property. See TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2013).
“Appropriate” means “[1] to bring about a transfer or purported transfer of title to or other
nonpossessory interest in property, whether to the actor or another; or [2] to acquire or otherwise
exercise control over property other than real property.” Id. § 31.01(4) (West Supp. 2013).
“Deprive” means “to withhold property from the owner permanently or for so extended a period
of time that a major portion of the value or enjoyment of the property is lost to the owner.” Id.
§ 31.01(2)(A). On the other hand, a person commits attempted theft if, with specific intent to




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commit theft, she does an act amounting to more than mere preparation that tends but fails to
effect the commission of the theft. Id. §§ 15.01, 31.03(a) (West 2011 & Supp. 2013).
Discussion
       Appellant contends that the trial court should have included in its charge an instruction on
the lesser included offense of attempted theft because the evidence indicates she did not take the
jewelry from the store and did not exercise, care, custody, and control over the items. But we
note that the act of carrying away or removing property is not an element of statutory theft.
Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.–Waco 2007, no pet.). Here, there is
evidence that Appellant concealed jewelry in her purse and was walking toward the exit. At this
point, Appellant exercised care, custody, and control over the jewelry. See TEX. PENAL CODE
ANN. § 31.01(4)(A) (defining “appropriate”).
       Appellant persists that the evidence reflects that she abandoned the theft before it could
be completed. In other words, even though the record indicates that Appellant intended to
deprive the owner of the property in question and took a step to further that intent, Appellant
contends that there was no appropriation of the property to the extent that the store was deprived
of its ownership interest in it. However, the evidence is undisputed that Appellant broke the theft
protection device on a shirt and discarded the shirt, which was ruined by the ink. The evidence is
further undisputed that Appellant was confronted by Clawson and Miller as she walked toward
the exit, at which point she removed jewelry from her purse. Clawson recognized this jewelry as
belonging to the store. Thus, the evidence demonstrates that Appellant completed the theft when
she secreted the jewelry in her purse and, with the requisite intent, walked toward the exit. The
fact that she attempted to dispose of the stolen jewelry before her purse was potentially subjected
to a search by Miller or Tyler police officers did not transform her earlier act of theft into the
lesser included crime of “attempted theft.” Rather, when Appellant exercised control over the
jewelry with the intent to steal it, she committed theft. We conclude that there is no evidence in
the record that demonstrates that Appellant is guilty of attempted theft, but not theft. Therefore,
we hold that the trial court did not err in denying Appellant’s request for a charge instruction on
attempted theft. Appellant’s sole issue is overruled.


                                          DISPOSITION
       Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.



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                                                                 SAM GRIFFITH
                                                                    Justice


Opinion delivered May __, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                                MAY , 2014


                                          NO. 12-13-00158-CR


                                    LATRICIA SHEREE HICKS,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0107-13)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
