                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________
                              NO. 09-12-00576-CR
                             ____________________

                      JOHN PATRICK PATTERSON,
                A/K/A CHARLES EMERSON BELL, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 252nd District Court
                       Jefferson County, Texas
                       Trial Cause No. 12-13947
__________________________________________________________________

                          MEMORANDUM OPINION

       After being convicted by a jury of theft—enhanced with two prior felony

offenses—John Patrick Patterson was sentenced to fifteen years in prison. See Tex.

Penal Code Ann. § 31.03(e)(4)(F) (West Supp. 2013) (providing that the theft of

certain metals valued at under $20,000 is a state jail felony); see also id. § 12.425

(West Supp. 2013) (enhancing punishment for state jail felonies to the punishment

range that applies to a second degree felony when the defendant has committed at

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least two prior offenses). In three issues, Patterson complains the trial court erred

by refusing to instruct the jury regarding three other offenses—misdemeanor theft,

attempted theft, and criminal trespass—that are, according to Patterson, lesser-

included offenses to stealing copper worth less than $20,000. See id. §

31.03(e)(4)(F) (defining elements of the offense for the theft of certain metals,

including copper). Because the trial court properly refused the defendant’s

requested instructions, we affirm Patterson’s conviction.

                                    Background

      Around 2:00 a.m., Officer Reagan Bray, a Port Arthur policeman, was

dispatched to a service center owned by Entergy. The service center is inside a

chain-link fence, topped with barbed wire. After Officer Bray entered the premises,

he saw Patterson climbing down from a bucket truck with a roll of wire in his

hands. Officer Bray also noticed another roll of wire on the ground near the bucket

truck. After Patterson reached the ground, he put the roll of wire down and then

began to walk off. When Officer Bray commanded Patterson to stop, he did; after

that, Officer Bray handcuffed Patterson and took him to jail.

      During the presentation of the State’s case, the State called a utility foreman

who had been employed by Entergy for 33 years. The foreman went to the service

center after being notified a breach of security had occurred there. After arriving

                                         2
and talking to Officer Bray, the foreman confirmed that Patterson did not have

permission to be on Entergy’s premises. The foreman also explained that he

noticed two coils of wire near Entergy’s bucket truck, one of which he described as

4 aught insulated copper that he estimated weighed 35 pounds, and another that

was 1 aught copper that weighed around 25 pounds. On cross-examination, the

foreman testified that he looked at the wire and knew it was copper because “I’ve

worked with it for 33 years.” Entergy’s foreman agreed that he had not tested the

wire to confirm that it was copper. On re-direct, the foreman explained that all of

the wire that looked like the coils Patterson was accused of stealing consisted of

copper wire.

      The State’s evidence also addressed the value of the copper Patterson had

taken. A corporate security manager who was in charge of Entergy’s security

testified that the two rolls of copper were worth approximately $261.00. The

manager admitted that he had not seen the wire rolls, and that his estimate was

based on information given to him.

      Given the copper content of the wire and its value, Patterson was charged

with the state jail felony of stealing copper. Tex. Penal Code Ann. §

31.03(e)(4)(F).




                                        3
      After the State rested, Patterson asked the trial court to instruct the jury

regarding the three lesser-included offenses at issue. See id. § 15.01 (West 2011)

(criminal attempt), § 30.05 (West Supp. 2013) 1 (criminal trespass), § 31.03(e)(2)

(West Supp. 2013) (misdemeanor theft (Class B)). The jury found Patterson guilty

of felony theft of copper. Subsequently, the trial court conducted a punishment

hearing and sentenced Patterson to fifteen years’ imprisonment. See id. § 12.425.2

In three issues, Patterson argues that the trial court committed reversible error by

failing to instruct the jury regarding misdemeanor theft (Class B), attempted theft,

and criminal trespass, which he contends are all lesser-included offenses with

respect to the crime of theft. In response, the State advances two arguments.

Regarding the crime of theft, the State argues there was no evidence introduced

      1
       Although the Legislature amended the criminal trespass statute after the
date Patterson committed his offense, there were no changes in the section
pertinent to his appeal. Therefore, we cite the current version.
      2
       The final judgment contains the notation “N/A” regarding the two
enhancement paragraphs of Patterson’s indictment. Assuming the reference was
intended to indicate “not applicable,” the references appear to be clerical errors.
During Patterson’s sentencing hearing, the record shows that he pled “true” to both
enhancements, and that the trial court pronounced him guilty regarding them.
Additionally, the length of Patterson’s sentence, fifteen years, reflects a sentence
consistent with the positive findings on the enhancement paragraphs in the
indictment alleging that Patterson had been previously convicted of two felonies.
See Tex. Penal Code Ann. § 12.425 (West Supp. 2013) (enhancing punishment for
committing a state jail felony to the punishment range that applies to a second
degree felony for a defendant who has committed at least two prior felonies).
                                         4
during Patterson’s trial allowing the jury to rationally find that if Patterson was

guilty, he committed only the crime of misdemeanor theft (Class B), or only the

crime of attempted theft. Regarding the crime of criminal trespass, the State argues

that criminal trespass is not a lesser-included offense to the crime of theft.

                                  Standard of Review

      Determining whether a charge should include instructions on a lesser-

included offense is a two-part analysis. See Hall v. State, 225 S.W.3d 524, 528

(Tex. Crim. App. 2007); Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App.

2011). First, we apply the criteria in article 37.09 of the Texas Code of Criminal

Procedure to determine whether an offense qualifies as a lesser-included offense.

Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998); see also Tex. Code Crim.

Proc. Ann. art. 37.09 (West 2006) (listing four elements to consider in determining

whether an offense is a lesser-included offense of another crime). “To determine

whether an offense qualifies as a lesser-included offense under this statute, we use

the cognate-pleadings approach.” State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim.

App. 2013). The second step of the analysis requires courts to “consider whether a

rational jury could find that, if the defendant is guilty, he is guilty only of the lesser

offense.” Id. at 163.




                                            5
      All of the evidence presented at trial is reviewed in determining what

conclusions a jury could have rationally reached from the evidence presented to it

in a trial. See Goad, 354 S.W.3d at 446. In our review, and in analyzing whether

the evidence raised an issue on a lesser-included offense that the trial court should

have allowed the jury to consider in reaching its verdict, the credibility of the

evidence presented, whether the evidence was controverted, or whether the

evidence conflicted with other evidence introduced during the trial is not

considered. Id. at 446-47.

      Nevertheless, the jury’s right to disbelieve crucial evidence addressing the

primary offense is alone not sufficient to require the trial court to submit an issue

to the jury on a claimed lesser-included offense. Skinner v. State, 956 S.W.2d 532,

543 (Tex. Crim. App. 1997). Rather, to require an instruction on the lesser-

included offense, the evidence before the jury must contain some evidence that is

directly germane to the lesser-included offense. See Goad, 354 S.W.3d at 446

(citing Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003)). In other

words, the record before the jury must contain some evidence that would allow a

rational jury to have acquitted Patterson on the greater offense while convicting

him of the lesser-included offense. See Salinas v. State, 163 S.W.3d 734, 741 (Tex.

Crim. App. 2005). The Court of Criminal Appeals has explained that “it is not

                                         6
enough that the jury may disbelieve crucial evidence pertaining to the greater

offense; there must be some evidence directly germane to a lesser included offense

for the factfinder to consider before an instruction on a lesser included offense is

warranted.” Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). However,

if there is more than a scintilla of evidence sufficient to make the lesser-included

offense a valid, rational alternative to the charged offense, the trial court must

provide the jury with an instruction on the lesser-included offense. Goad, 354

S.W.3d at 446.

                                Misdemeanor Theft

      The State does not dispute Patterson’s claim that under article 37.09,

misdemeanor theft is a lesser-included offense of theft. Therefore, with respect to

misdemeanor theft, the first step of the analysis is undisputed. See Choice v. State,

351 S.W.3d 77, 80-81 (Tex. App.—Tyler 2011, pet. ref’d) (treating misdemeanor

theft (Class A), a crime under section 31.03(e) of the Penal Code, as a lesser-

included offense to the amended section 31.03(e)(4)(F) of the Penal Code).

Instead, the State contends the evidence is not sufficient to make the lesser-

included offense of misdemeanor theft a valid, rational alternative to the greater

offense of stealing copper.




                                         7
      To resolve Patterson’s first issue, we must determine whether the evidence

before the jury would have allowed the jury to rationally determine that Patterson

was guilty of committing misdemeanor theft by “more than mere speculation—it

requires affirmative evidence that both raises the lesser-included offense and rebuts

or negates an element of the greater offense.” Cavazos v. State, 382 S.W.3d 377,

385 (Tex. Crim. App. 2012). Here, the evidence before the jury was that Patterson

was observed removing a roll of wire, identified by an Entergy foreman as copper

wire, from a bucket truck. There was also evidence that bucket trucks are stocked

with wire, and there was evidence that another roll of wire, which Entergy’s

foreman also identified as being copper wire, was observed on the ground near the

roll that Patterson dropped after Officer Bray saw him descending from Entergy’s

bucket truck. There was no testimony during the trial that either of the rolls

contained wire that consisted of another type of metal. While Patterson questioned

Entergy’s foreman regarding whether the wire on the rolls was made of copper, he

offered no evidence that the rolls of wire consisted of a type of metal inconsistent

with a violation of section 31.03(e)(4)(F). In closing argument, Patterson’s counsel

suggested that the State could have, but did not, have the wire tested by a

metallurgist, and he concluded that the State’s evidence failed to demonstrate that

the wire on the rolls was made of copper beyond reasonable doubt.

                                         8
         The only evidence offered at trial showed that the wire on the rolls at issue

contained copper. There was no affirmative evidence to the contrary. On this

record, we conclude that no rational jury could have decided that the wire was not

copper. See id. at 385-86; Choice, 351 S.W.3d at 81. We overrule Patterson’s first

issue.

                                    Attempted Theft

         In his second issue, Patterson contends that because “[n]othing in the record

demonstrates he actually took anything[,]” the trial court should have instructed the

jury regarding the crime of attempted theft. We disagree that there was any

evidence to support an instruction regarding attempted theft.

         A person commits 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 Ann. §

15.01(a). A person commits the offense of theft if he “unlawfully appropriates

property with intent to deprive the owner of property.” Id. § 31.03(a) (West Supp.

2013). “‘Appropriate’” means “to bring about a transfer or purported transfer of

title to or other nonpossessory interest in property, whether to the actor or another;

or [] to acquire or otherwise exercise control over property other than real

property.” Id. § 31.01(4) (West Supp. 2013). The act of carrying away or removing

                                           9
property is not an element of statutory theft. Hawkins v. State, 214 S.W.3d 668,

670 (Tex. App.—Waco 2007, no pet.).

      When Officer Bray saw Patterson with the roll of wire in his hand, Patterson

was exercising control over it. See Tex. Penal Code Ann. § 31.01(4)(B). Based on

the testimony in this case showing that Patterson did not have permission to be

present on Entergy’s property, the State was not required to show that Patterson

removed the wire rolls from Entergy’s property to prove that Patterson was

exercising control over property that he did not own. See id. §§ 15.01, 31.01(4)(B),

31.03(a); Hawkins, 214 S.W.3d at 670. On this record, there was no evidence

showing that Patterson had not appropriated Entergy’s property, and no evidence

showing that Patterson, in taking the wire, did not intend to steal it. Therefore, no

rational jury on the evidence presented in Patterson’s trial could have found that

Patterson was only guilty of attempting to steal the copper wire.

      Patterson argues that it is “plausible that he could have decided not to take

the item had he not been stopped.” However, Patterson did not testify that he

changed his mind about taking the wire. Additionally, “renunciation is a defense to

a preparatory offense and the actor must have voluntarily and completely avoided

commission of the offense[;]” “renunciation is not voluntary if it is motivated in

whole or in part by circumstances ‘that increase the probability of detection or

                                         10
apprehension.’” Hawkins, 214 S.W.3d 671; see Tex. Penal Code Ann. § 15.04(a),

(c)(1) (West 2011). Under the circumstances presented in the record, Patterson’s

decision to drop the roll of wire after being detected does not support his claim of

renunciation.

      Having carefully reviewed all of the evidence, we conclude that no evidence

shows that if Patterson was guilty, he was only guilty of attempted theft. See Meru,

414 S.W.3d at 162-63. We overrule Patterson’s second issue.

                                Criminal Trespass

      In his third issue, Patterson argues that he was entitled to an instruction on

the lesser-included offense of criminal trespass. The State contends that in

considering the language in Patterson’s indictment, criminal trespass does not

qualify as a lesser-included offense under article 37.09 of the Code of Criminal

Procedure. See Tex. Code Crim. Proc. Ann. art. 37.09(1); Moore, 969 S.W.2d at 8.

      We use the cognate-pleadings approach to determine whether an offense

qualifies as a lesser-included offense under article 37.09(1). Ex parte Watson, 306

S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g). Watson instructs that an

offense qualifies as a lesser-included offense if the indictment for the greater

offense either:




                                        11
      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. Both statutory elements and any descriptive
      averments alleged in the indictment for the greater-inclusive offense
      should be compared to the statutory elements of the lesser offense. If a
      descriptive averment in the indictment for the greater offense is
      identical to an element of the lesser offense, or if an element of the
      lesser offense may be deduced from a descriptive averment in the
      indictment for the greater-inclusive offense, this should be factored
      into the lesser-included-offense analysis in asking whether all of the
      elements of the lesser offense are contained within the allegations of
      the greater offense.

Id. “[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.” Meru, 414

S.W.3d at 162. Rather, the functional-equivalence concept is utilized in examining

the elements of the lesser offense to decide whether they are “‘functionally the

same or less than those required to prove the charged offense.’” Id. (quoting

McKithan v. State, 324 S.W.3d 582, 588 (Tex. Crim. App. 2010)).

      A person commits criminal trespass if he “enters or remains on or in

property of another . . . without effective consent and the person . . . had notice that

the entry was forbidden[.]” Tex. Penal Code Ann. § 30.05(a)(1). Notice includes

fencing designed to exclude intruders. Id. § 30.05(b)(2)(B).

      The statutory elements of theft of copper under Texas Penal Code section

31.03(e)(4)(F)(iii), as alleged in Patterson’s indictment, are
                                          12
      (1) Patterson
      (2) unlawfully appropriated copper wire
      (3) valued at less than $20,000
      (4) with intent to deprive the owner
      (5) without the owner’s effective consent.

Based on the allegations in Patterson’s indictment, Patterson was not indicted for

criminal trespass and the two offenses do not share the same elements. While the

State proved that Patterson entered Entergy’s fenced property without its consent at

trial, the facts that relate to a claim of trespass are not among those alleged in

Patterson’s indictment.

      Based on Patterson’s indictment, under the cognate-pleadings approach, and

using the functional-equivalence concept, we conclude that criminal trespass is not

a lesser-included offense of theft. See McKithan, 324 S.W.3d at 588; Watson, 306

S.W.3d at 273. Because the trial court properly refused Patterson’s request to

instruct the jury on the lesser-included offense of criminal trespass, we overrule

Patterson’s third issue.

                                    Disposition

      Having overruled all of Patterson’s issues, we affirm the trial court’s

judgment.

      AFFIRMED.




                                        13
                                            ___________________________
                                                   HOLLIS HORTON
                                                        Justice


Submitted on December 2, 2013
Opinion Delivered April 30, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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