Motion for Rehearing Denied; Motion for Rehearing En Banc Denied as Moot;
Memorandum Opinion of July 9, 2015, Withdrawn; Affirmed and Substitute
Majority Opinion and Dissenting Opinion filed October 20, 2015.




                                         In The

                       Fourteenth Court of Appeals

                                 NO. 14-14-00304-CR

                  HENRY RICHARD BULLOCK, JR., Appellant

                                           V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 177th District Court
                              Harris County, Texas
                          Trial Court Cause No. 1400383

                       DISSENTING OPINION

      I am persuaded by appellant’s motion for rehearing that the original panel
opinion, which I authored, employed a lesser-included-offense analysis for the
disposition of appellant’s jury charge issue that is in conflict with Texas Court of
Criminal Appeals decisions such as Jones v. State, 984 S.W.2d 254, 257–58 (Tex. Crim.
App. 1998). Specifically, the original panel opinion reasoned that, notwithstanding
appellant’s testimony that he did not exercise control over the truck, appellant’s blanket
denial of his intent to steal the truck negated his ability to obtain a lesser-included
instruction on attempted theft. Jones, however, instructs that the proper analysis does
not focus solely on the defendant’s “blanket denial” of theft because the question is
whether any evidence from any source raises the issue. Id. (holding that the defendant
was entitled to lesser-included-offense instruction for theft even though he testified that
he did not steal or intend to steal). More to the point, contrary to what the panel opinion
says, “[t]he jury was free to believe [some] testimony by appellant, and disbelieve the
rest of what he said.” Id. at 257.

      Thus, if the jury believed appellant’s testimony that he did not exercise control
over the truck, disbelieved his testimony that he did not intend to steal the truck, and
inferred from appellant’s entry into the truck that he intended to steal the truck, then a
jury rationally could have found appellant guilty of attempted theft and only attempted
theft. See Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011) (holding that a
defendant is entitled to a lesser-included offense instruction if there is “evidence in the
record which would permit a jury to rationally find that, if the defendant is guilty, he is
guilty only of the lesser-included offense”).1

      In other words, appellant’s denials regarding his conduct of exercising control
amount to some evidence directly germane to the lesser-included offense. Lofton does
not resolve the jury charge issue in this case because appellant did not merely present
evidence that he committed no offense at all. See Lofton v. State, 45 S.W.3d 649, 652
(Tex. Crim. App. 2001) (defendant not entitled to instruction on resisting arrest when

      1
          Appellant testified:
              Q. Okay. Would you agree with me that you—that you exercised control over
      that truck?
                A. No, I didn’t.
              Q. So you don’t think that sitting in the driver’s seat pushing the accelerator,
      messing with all of the buttons and trying to drive away would not be exercising any
      control over the truck? Yes or no?
                A. If that’s what I did, but that’s not what I did.

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charged with assaulting a public servant because the defendant “flatly denied” touching
the officer and testified that he did not feel like he was “resisting or nothing like that”).
The jury could have found appellant guilty of attempted theft because there was more
than a scintilla of evidence that he (1) intended to steal the truck, (2) did an act
amounting to more than mere preparation, and (3) failed to effect the commission of the
offense because he failed to exercise control over the truck.

       Paying no heed to Jones and its progeny, the substitute majority opinion focusses
instead on cases addressing the sufficiency of the evidence for theft. The substitute
majority opinion reasons that a theft offense “occurs” when the defendant is present
without permission behind the steering wheel of a motor vehicle.                      This analysis,
however, deprives the jury of fulfilling its important role to decide questions of fact.

       I agree with then-Justice Alcala’s reasoning in Sweed—legal sufficiency cases are
unpersuasive for determining whether a jury rationally could have found that appellant
committed attempted theft versus theft. See Sweed v. State, 321 S.W.3d 42, 50–51 (Tex.
App.—Houston [1st Dist.] 2010) (Alcala, J., dissenting) (agreeing the evidence was
legally sufficient, but the issue of whether a lesser-included-offense instruction should
be given is not addressed by legal sufficiency cases), rev’d, 351 S.W.3d 63 (Tex. Crim.
App. 2011). I would hold, as the Court of Criminal Appeals held in Sweed, that “the
evidence presented is subject to different interpretations.” See 351 S.W.3d at 68. “It is
the jury’s role, not the court’s, to determine whether there is sufficient evidence to
support a lesser-included offense.” Id. at 69. The error in in this case is “easily
preventable by one simple rule: Judges should not refuse to allow juries to decide
questions of fact.” Sweed, 321 S.W.3d at 52 (Alcala, J., dissenting). 2


       2
         Regardless of the propriety of relying on sufficiency cases, the substitute majority opinion’s
sufficiency cases are factually distinguishable and do not hold that no jury rationally could find
attempted theft under the evidence presented. See Barnes v. State, 513 S.W.2d 850, 851 (Tex. Crim.
App. 1974) (noting that the appellant had started the motor, placed his hands on the steering wheel, and
                                                   3
       Finally, appellant suffered some harm because it is undisputed that the thirty-year
penalty appellant received for theft exceeds the twenty-year maximum sentence for an
enhanced attempted theft. See, e.g., Bridges v. State, 389 S.W.3d 508, 512–13 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). As such, I would grant appellant’s motion
for rehearing, reverse the trial court’s judgment, and remand for a new trial.

       Because the panel denies appellant’s motion for rehearing and issues a substitute
majority opinion affirming appellant’s conviction, I respectfully dissent.




                                             /s/       Sharon McCally
                                                       Justice


Panel consists of Chief Justice Frost and Justices Boyce and McCally. (Boyce, J.,
majority).
Publish — Tex. R. App. P. 47.2.




harbored the “obvious intent to drive it away”); Ward v. State, 446 S.W.2d 304, 305–06 (Tex. Crim.
App. 1969) (noting that the defendant was found sitting behind the steering wheel twenty-two days
after the car went missing from a different location); Esparza v. State, 367 S.W.2d 861, 862 (Tex.
Crim. App. 1963) (holding that the evidence was sufficient because “by pushing the automobile away
from the place where he had found it, [Esparza] had exercised sufficient dominion and control”);
Krause v. State, 206 S.W.2d 257, 258 (Tex. Crim. App. 1947) (noting that the automobile “was not at
the place where [the owner] had parked it but had been moved”).
       Appellant’s reliance on Denton, a legal sufficiency case, merely illustrates the fact that a jury
found Denton guilty of attempted theft (rather than theft) when the jury was presented with a lesser-
included-offense instruction for attempted theft under facts similar to Martinez’s testimony here. See
Denton v. State, 880 S.W.2d 255, 256 (Tex. App.—Fort Worth 1994) (noting that the defendant was
charged with theft of a vehicle but the jury acquitted him of theft and convicted him of attempted theft;
evidence showed that the defendant was sitting behind the wheel of the complainant’s truck and
revving the engine, but the truck had a transmission problem and could not be moved), aff’d, 911
S.W.2d 388 (Tex. Crim. App. 1995).

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