                                   NO. 12-17-00350-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

GREGORY CONANT SHARP,                             §      APPEAL FROM THE 7TH
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       A jury convicted Gregory Conant Sharp of the state jail felony of theft. In his first of two
issues, Appellant contends that the evidence is insufficient to support the verdict, because there is
no evidence that he committed theft by deception, the means alleged in the indictment. The State
agrees that there is no proof of this essential element. We reverse the judgment of the trial court
and render judgment acquitting Appellant.


                                          BACKGROUND
       On January 19, 2017, Appellant was a customer at the Lindale Wal-Mart Store.
Appellant selected a cell phone case, discarded the cell phone case packaging, and installed the
case on his phone. While in the store, he also placed a pair of gloves in his pocket. He paid the
cashier for some other items, but did not pay for the cell phone cover or the gloves, which
remained concealed in his pocket.
       Walmart asset protection employees, Breanna Brown and Ryan Burgess, monitored
Appellant throughout the store. They saw him take the cell phone case and slip the gloves into
his pocket. The cashier who scanned Appellant’s purchases was aware of what occurred.
       At the conclusion of trial, the jury found Appellant “guilty” of theft of property in an
amount less than $2,500. Appellant pleaded “true” to two enhancement allegations and the jury
assessed his sentence at imprisonment for twenty years. However, the trial court subsequently
granted Appellant’s motion for a new punishment trial. Appellant and the State entered an
agreed punishment recommendation of confinement for sixteen months in a state jail facility,
which the trial court approved. This appeal followed.


                                 SUFFICIENCY OF THE EVIDENCE
       In his first issue, Appellant challenges the sufficiency of the evidence to find him guilty
of theft by deception as alleged in the indictment.
Standard of Review
       The standard for reviewing a legal sufficiency challenge is whether, considering all the
evidence in the light most favorable to the verdict, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex.
Crim. App. 2010). Considering the evidence “in the light most favorable to the verdict” requires
the reviewing court to defer to the jury’s credibility and weight determinations because the jury
is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 899.
       Circumstantial evidence is as probative a direct evidence in establishing the guilt of an
actor. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “[T]he standard of
review on appeal is the same for both direct and circumstantial evidence cases.” Guevara v.
State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). An appellate court presumes that the
factfinder resolved any conflicting inferences in favor of the verdict and defers to that resolution.
Clayton, 235 S.W.3d at 778.
       To determine what “the essential elements of the crime” are, a reviewing court looks to
the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997). A hypothetically correct jury charge accurately sets out the law, is authorized
by the indictment, does not unnecessarily increase the State’s burden of proof of unnecessarily
restrict its theories of liability and adequately describes the offense for which the defendant was
tried. Id. When the State unnecessarily pleads a statutory definition that narrows the manner
and means in which the offense is alleged to have been committed, that definition is “the law as




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authorized by the indictment” and thus the allegation must be proven beyond a reasonable doubt.
Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011).
Applicable Law
        A person commits theft if he unlawfully appropriates property with intent to deprive the
owner of property. TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2017). Appropriation is
unlawful if it is without effective consent. Id. § 31.03(b)(1). As relevant to this case, consent is
not effective if induced by deception. Id. § 31.01(3)(A) (West Supp. 2017). Deception means,
in pertinent part:


        (A) creating or confirming by words or conduct a false impression of law or fact that is likely to
        affect the judgment of another in the transaction, and that the actor does not believe to be true;

        (B) failing to correct a false impression of law or fact that is likely to affect the judgment of
        another in the transaction, that the actor previously created or confirmed by words or conduct, and
        that the actor does not now believe to be true;

        (C) preventing another from acquiring information likely to affect his judgment in the transaction;

        ...

        (E) promising performance that is likely to affect the judgment of another in the transaction and
        that the actor does not intend to perform or knows will not be performed, except that failure to
        perform the promise in issue without other evidence of intent or knowledge is not sufficient proof
        that the actor did not intend to perform or knew the promise would not be performed.


Id. § 31.01(1). “[T]heft by deception does not occur if the alleged victim hands over property or
consents to the defendant taking possession knowing that the defendant’s representations are not
true.” Rushing v. State, 141 S.W.3d 739, 743 (Tex. App.—El Paso 2004, no pet.) (citing Swope
v. State, 723 S.W.2d 216, 223 (Tex. App.—Austin 1986), aff’d, 805 S.W.2d 442 (Tex. Crim.
App. 1991)). In 2013, the court of criminal appeals held that theft of service by deception
requires proving (1) the defendant’s intent to deceive; (2) an act that is likely to affect the
judgment of another; and (3) the victim’s actual reliance on the deception. See Daugherty v.
State, 387 S.W.3d 654, 659 (Tex. Crim. App. 2013).
Discussion
        Appellant maintains, and the State agrees, that there is no evidence to sustain the State’s
allegation that Appellant committed theft by deception. Appellant was under observation by
Ryan Burgess, a Walmart asset protection employee, from the time he first entered the store.



                                                         3
Burgess and his supervisor, Breanna Brown, testified that they monitored Appellant the entire
time until he left the cashier in the automotive department without paying for the cell phone
cover or the gloves. The record shows that the cashier who scanned Appellant’s purchases was
aware of the situation and knew asset protection had been watching Appellant. Therefore, there
is no evidence that the victim relied on the deception. An essential element of theft of service by
deception is the victim’s reliance on the deception. Daugherty, 387 S.W.3d at 659; Rushing,
141 S.W.3d at 743.
         Accordingly, viewing the evidence in the light most favorable to the jury’s verdict, we
conclude that a rational trier of fact could not have found the essential elements of theft by
deception beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also
Brooks, 323 S.W.3d at 899. Appellant’s first issue is sustained.1


                                                   DISPOSITION
         We reverse Appellant’s conviction and render a judgment of acquittal.


                                                                               BILL BASS
                                                                                Justice

Opinion delivered September 10, 2018.
Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                             (DO NOT PUBLISH)




         1
           Given our disposition of Appellant’s first issue, we need not address his second issue, in which he
challenges the absence of a lesser included offense instruction in the jury charge. See TEX. R. APP. P. 47.1.


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 10, 2018


                                          NO. 12-17-00350-CR


                                  GREGORY CONANT SHARP,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-0542-17)

                    THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that there was error
in the judgment, it is ORDERED, ADJUDGED and DECREED by the Court that the judgment
of the trial court be reversed and a judgment of acquittal be, and the same is, hereby rendered
herein in accordance with the opinion of this Court; and that this decision be certified to the court
below for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
