             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-19-00202-CR
      ___________________________

 AUTUMN LYNN HICKMAN, Appellant

                      V.

          THE STATE OF TEXAS


   On Appeal from the 43rd District Court
          Parker County, Texas
       Trial Court No. CR18-0531


Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
 Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

       Appellant Autumn Lynn Hickman was convicted of theft of property. On

appeal, she argues that the trial court erred by refusing a jury instruction on the lesser-

included offense of attempted theft. She cites her statements to police that she had a

change of heart and left the merchandise just inside the store; appellant argues that these

statements establish attempted theft as a rational alternative for the jury and that a

lesser-included-offense instruction was therefore mandatory.

       But appellant’s statements did nothing to contradict the undisputed facts that

she took a cart of goods past the cash registers, through an electronic theft-prevention

system, and out a first set of doors that led into an entryway. These facts would

establish a completed theft, and regardless of whether she abandoned the merchandise

before exiting through a second set of doors, her statements did not bring attempted

theft into the realm of rational alternatives. The instruction was therefore properly

denied, and we affirm.

                                            I.

       Leanna Combs was working as a Walmart loss-prevention officer on

December 23, 2017, when she saw appellant pushing a full shopping cart. The type of

items appellant had in her cart raised a red flag for theft, so Combs contacted her

manager Donna Gillespie and began keeping an eye on appellant. Combs followed as

appellant circled from one end of the store to the other and then lingered near the front,

just beyond the cash registers. Appellant then pushed the cart past the electronic theft-

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prevention alarm system and through the first set of doors, headed for the second set

of doors that led outside. Combs testified that appellant then exited the store with the

cart, and surveillance video captured appellant exiting the store with Combs in pursuit.

      Gillespie was waiting outside. Gillespie testified that she stopped appellant on

the sidewalk and asked to see a receipt for the items in her cart. According to Gillespie,

appellant seemed nervous, and she began rummaging through her purse, ostensibly

searching for the receipt. But rather than producing a receipt, appellant grabbed her

purse and headed for a white SUV in the parking lot, leaving the cart behind. Gillespie

photographed the SUV’s license plate as appellant sped away. Gillespie testified that

she did not give appellant permission to take the property and that Walmart considers

it theft when items are taken beyond the cash registers and the alarm system.

      Officer Richard Lukowsky received a call and came to Walmart to collect

evidence, including photographs of appellant and a receipt totaling the value of the

goods in appellant’s cart, which was $441.94. He ran the SUV’s license plate, and the

system returned an address north of town. The next day—Christmas Eve—Officer

Lukowsky went to the address, but he did not find the white SUV. As he drove back

to town, though, he saw the SUV. When he pulled it over, he found two men in the

front and appellant in the back.

      As recorded on the officer’s body camera, appellant initially denied that, on the

day before, she had even been in the town where the Walmart is located. But when

Officer Lukowsky told appellant he had photographs of her standing in the aisles of the

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Walmart, she admitted that she had been there. Appellant then made the statements

that are at the center of this appeal: she agreed that she intended to steal the

merchandise and took it past the first set of doors, but she said that she abandoned the

merchandise before the second set of doors; according to appellant, she had a change

of heart, left the cart, and exited the store. She believed that no theft had occurred.

Officer Lukowsky warned her that nonetheless, a warrant would likely be issued for her

arrest in the coming weeks, and he ended the stop.

       At the charge conference, appellant argued that she was entitled to an instruction

on the lesser-included offense of attempted theft. As support, appellant relied on her

statements to Officer Lukowsky. She asserted that these statements amounted to more

than a scintilla of evidence that she had merely attempted theft, not completed it. The

trial court denied the requested instruction and charged the jury on theft.

       After the close of the evidence, the jury found appellant guilty of theft of

property valued at less than $2,500 with two prior theft convictions, 1 a state-jail felony.

See Tex. Penal Code Ann. § 31.03(e)(4)(D). The jury assessed punishment at four-and-

a-half years’ confinement.

                                            II.

       In her sole issue on appeal, appellant contends that the trial court erred by

refusing to submit the lesser-included offense of attempted theft to the jury. She



       Appellant stipulated to these convictions.
       1



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observes that in order to be entitled to a lesser-included-offense instruction, a defendant

need only produce something more than a scintilla of evidence that indicates the lesser-

included offense. According to appellant, her video-recorded statements to Officer

Lukowsky—especially her statement that she abandoned the cart just before exiting the

store—amount to more than a scintilla of evidence tending to show that she merely

attempted theft. We disagree.

       As we explain, even under the version of events that appellant gave to Officer

Lukowsky, a theft had already been completed by the time she abandoned the cart. Her

statements to the officer therefore do not provide the measure of proof necessary to

support an instruction on attempted theft.

       We use a two-step analysis to determine whether an appellant was entitled to a

lesser-included-offense instruction: (1) Are the elements of the lesser-included offense

included within the proof necessary to establish the charged offense’s elements? (2) Is

there evidence in the record from which a jury could find the defendant guilty of only

the lesser-included offense? State v. Meru, 414 S.W.3d 159, 161 (Tex. Crim. App. 2013);

Hall v. State, 225 S.W.3d 524, 528, 535–36 (Tex. Crim. App. 2007); Rousseau v. State, 855

S.W.2d 666, 672–73 (Tex. Crim. App. 1993).

       The first step in the lesser-included-offense analysis is a legal question and does

not depend on the trial evidence. Hall, 225 S.W.3d at 535. In this case, the first step is

easily established because, as a matter of law, attempted theft is a lesser-included offense



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of the charged offense of theft. Tex. Code Crim. Proc. Ann. art. 37.09(4); Bullock v.

State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016).

      Rather, the parties only dispute the second step. Under the second step, the

record must contain some evidence that would permit a jury to rationally find that the

appellant is guilty only of the lesser offense. Hall, 225 S.W.3d at 536; Salinas v. State,

163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. In other

words, the evidence must establish the lesser-included offense as “a valid, rational

alternative to the charged offense.”       Hall, 225 S.W.3d at 536.        This is a fact

determination based on all the evidence presented at trial. Meru, 414 S.W.3d at 163. If

anything more than a scintilla of evidence raises a fact issue about whether the

defendant is guilty only of the lesser offense—regardless of whether the evidence is

weak, impeached, or contradicted—we must conclude that the trial court erred by

failing to give an instruction on the lesser-included offense. See Ritcherson v. State, 568

S.W.3d 667, 671 (Tex. Crim. App. 2018); Hall, 225 S.W.3d at 536.

      Although “this threshold showing is low,” it is not enough that the jury may

disbelieve crucial evidence pertaining to the greater offense. Sweed v. State, 351 S.W.3d

63, 68 (Tex. Crim. App. 2011). 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. This 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. Id.

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       We therefore assess whether there is some evidence directly germane to

attempted theft. A person commits a theft if she unlawfully appropriates property with

intent to deprive the owner of property.            Tex. Penal Code Ann. § 31.03(a).

Appropriation of property is unlawful if it is without the owner’s effective consent. Id.

§ 31.03(b). “Appropriate” means to acquire or otherwise exercise control over property

other than real property. Id. § 31.01(4)(B). A person commits a criminal attempt if,

with specific intent to commit an offense, she 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).

       Appellant argues that her statements to Officer Lukowsky supply some evidence

directly germane to attempted theft. To be clear, though, appellant’s statements to the

officer did not tend to negate several aspects of the State’s case; the State proved the

following facts that appellant left essentially undisputed:

       •      Appellant gathered several hundred dollars’ worth of Walmart property

              into a cart;

       •      She circled the store and headed to the front;

       •      She then pushed the cart past the cash registers, the theft-prevention alarm

              system, and the first set of doors, headed for the second set of doors,

              which led outside;




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      •      As appellant admitted, she did all this with the intent to deprive Walmart

             of the property.

      The only respect in which her statements tended to contradict the loss-

prevention officers’ testimony and the surveillance video was with regard to what

occurred after she went through the first set of doors. According to appellant’s

statements, she abandoned the cart just before exiting the second set of doors.

According to Walmart employees and surveillance footage, she took the cart outside

and was stopped there.

      However, even accounting for this contradiction, appellant has left undisputed a

set of facts that establishes a fully completed theft. There is no shortage of authorities

in which courts have found a completed theft under circumstances similar to the

undisputed facts here. For instance, in one case, a Walmart loss-prevention officer saw

the defendant take a purse, gather merchandise into that purse, and carry the purse past

the cash registers. Thomas v. State, No. 02-15-00216-CR, 2016 WL 3889146, at *1 (Tex.

App.—Fort Worth July 14, 2016, no pet.) (mem. op., not designated for publication).

She was apprehended inside the store. Id. We held the evidence sufficient to establish

theft, reasoning that by carrying the merchandise past the point where she had

Walmart’s permission to take it, the defendant had exercised control over the

merchandise with intent and without consent. Id. at *3. In another case, the defendant

removed electronics from their packaging and placed them in his pockets, and as he

was leaving the retail store, an employee stopped him in the vestibule between the first

                                            8
and second sets of doors. Segeada v. State, No. 09-11-00452-CR, 2012 WL 4470889, at

*2 (Tex. App.—Beaumont Sept. 26, 2012, no pet.) (mem. op., not designated for

publication). The court held the evidence sufficient in that the defendant “walked past

the registers and the security devices near the store’s exit” with the electronics in his

pockets and “made no effort to pay for them.” Id. In still another case, the court held

the evidence sufficient to show a completed theft where a defendant pushed a cart full

of goods by Walmart’s cash registers, past an electronic security system, and through

the first set of doors before being apprehended just shy of the second set of doors.

Barrett v. State, No. 01-10-00824-CR, 2012 WL 1649855, at *1, *3 (Tex. App.—Houston

[1st Dist.] May 10, 2012, no pet.) (mem. op., not designated for publication). The court

held that the State was not required to prove that the defendant actually made it through

the final exit in order to establish a theft. Id. at *3. And in Hicks v. State, similar

principles were applied to uphold the denial of a lesser-included-offense instruction on

attempted theft in a retail store. See No. 12-13-00158-CR, 2014 WL 1922619, at *3

(Tex. App.—Tyler May 14, 2014, no pet.) (mem. op., not designated for publication).

      Here, regardless of appellant’s contradictory evidence, proof of a completed

offense remains intact and undisputed. Appellant admitted her intent to deprive

Walmart of property. She did not offer any evidence tending to dispute the State’s

proof that she exercised control over the property in areas where she lacked Walmart’s

consent to take it: beyond the cash registers where she should have paid for the

property, beyond the security system designed to prevent customers from taking

                                           9
property without consent, and beyond the first set of doors leading outside. With the

greater offense already complete, appellant’s statement that she left the merchandise

just short of the outer threshold would not tend to show the lesser offense of criminal

attempt. There is thus no evidence to establish attempted theft as a valid, rational

alternative to the charged offense of theft. See Hall, 225 S.W.3d at 536. The trial court

therefore correctly refused the instruction on attempted theft. We overrule appellant’s

sole issue.

                                          III.

       We affirm the trial court’s judgment.

                                                      /s/ Wade Birdwell

                                                      Wade Birdwell
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: April 23, 2020




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