Opinion issued July 28, 2015




                                     In The

                               Court of Appeals
                                     For The

                         First District of Texas
                            ————————————
                               NO. 01-14-00605-CR
                           ———————————
                    ANDRETRELL PALMER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                  On Appeal from the 183rd District Court
                          Harris County, Texas
                      Trial Court Case No. 1402466


                                  OPINION

     Andretrell Palmer appeals his conviction for theft of copper.1 In one issue,

he contends that the trial court erred by not including in the jury charge an




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     TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(F)(iii) (West 2011).
instruction permitting the jury to find Palmer guilty of attempted theft only. We

affirm.

                                          Background

       The Houston Police Department assigned Officer R. A. Arriaga to surveil a

parking lot in downtown Houston in response to a series of thefts in the area. He

noticed a man reach into a pickup truck parked in the lot and remove a cardboard

box. He later identified the man as Palmer. Officer Arriaga saw Palmer take the

box, walk away from the truck, and sit down near the edge of the lot. Officer

Arriaga then radioed for backup officers.

       Officer W. A. Montgomery responded to Officer Arriaga’s radio call.

Officer Montgomery arrested Palmer, who was still sitting down with the box.

Officer Montgomery discovered that the box contained copper fittings.

       The truck belonged to Robert Reynolds, who was working on the plumbing

and air conditioning of a nearby office building. He had temporarily left several

items related to this project in the back of his pickup truck, including a box of

copper fittings. He identified the box recovered from Palmer as the same box of

fittings that he had left in his truck.




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      At trial, Palmer requested that a jury-charge instruction on attempted theft2

as a lesser-included offense of theft. The trial court denied the request, and the jury

convicted Palmer of theft. Palmer timely appealed.

                           Attempted-Theft Instruction

      Palmer contends that the jury charge should have included an instruction on

attempted theft.

A.    Standard of review

      “In determining if the jury should be charged on a lesser offense, this Court

applies a two-step analysis.” Segundo v. State, 270 S.W.3d 79, 90 (Tex. Crim.

App. 2008). “First, we decide if the offense is a lesser-included offense of the

charged offense . . . .” Id. This “is a question of law” and the standard of review is

de novo. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).

      “The second prong of the test then requires an evaluation to determine

whether some evidence exists that would permit a jury to rationally find that, if the

defendant is guilty, he is guilty only of the lesser offense.” McKinney v. State, 207

S.W.3d 366, 370 (Tex. Crim. App. 2006). “We review the trial court’s decision

regarding including a lesser-included offense in the jury charge for abuse of

discretion.” Brock v. State, 295 S.W.3d 45, 49 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). “In making this determination, this Court should review all of the


2
      TEX. PENAL CODE ANN. § 15.01 (West Supp. 2014).
                                          3
evidence presented at trial.” Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App.

1994). “Anything more than a scintilla of evidence” that the defendant is guilty of

the lesser-included offense but not guilty of the charged offense “is sufficient to

entitle a defendant to a lesser charge.” Id.; see Segundo, 270 S.W.3d 90–91.

B.    Attempted theft is a lesser-included offense of theft

      Palmer’s requested instruction passes the first prong of the test because

attempted theft is a lesser-included offense of theft. See TEX. CRIM. PROC. CODE

ANN. art. 37.09(4) (West 2006). For the second prong, Palmer contends that there

is evidence that he attempted but failed to appropriate the box of copper parts.

Appropriation is an element of theft. TEX. PENAL CODE ANN. § 31.03 (West 2011).

The Penal Code provides the following definition:

      (4)   “Appropriate” means:

            (A)    to bring about a transfer or purported transfer of title to or
                   other nonpossessory interest in property, whether to the
                   actor or another; or

            (B)    to acquire or otherwise exercise control over property
                   other than real property.

Id. § 31.01(4) (West Supp. 2014).

      Palmer asserts that the following evidence provides more than a scintilla of

evidence that he attempted but failed to appropriate the box: “[Palmer] did not

carry off the box of fittings to another location. He took the box and sat down no

more than 10 to 15 feet away from Reynold’s truck. [Palmer] did not handle the

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contents of the box. He made no attempt to evade [the police].” In addition,

“[w]hen the backup officer arrested [Palmer], he was calmly seated on the ground

about a foot away from the box of fittings.” Further, “Reynold’s property was

returned to him.” Accordingly, Palmer asserts that “there is some evidence to

suggest that [Palmer] did not ‘appropriate’ the copper fittings in the sense of

‘depriving the owner permanently or for a substantial period of time.’”

      These facts provide no evidence that Palmer tried but failed to appropriate

the box. Any “exercise [of] control over property other than real property” is an

appropriation regardless of the duration of that control. See id.; see also Patterson

v. State, No. 09-12-00576-CR, 2014 WL 1778373, at *4 (Tex. App.—Beaumont

Apr. 30, 2014, pet. ref’d) (mem. op., not designated for publication) (defendant on

trial for theft of copper wire was not entitled to attempted-theft instruction because

“[w]hen Officer Bray saw Patterson with the roll of wire in his hand, Patterson was

exercising control over it.”); Hicks v. State, No. 12-13-00158-CR, 2014 WL

1922619, at *3 (Tex. App.—Tyler May 14, 2014, no pet.) (mem. op., not

designated for publication) (holding that defendant who stole jewelry from store

but did not leave store was not entitled to attempted-theft instruction because “the

act of carrying away or removing property is not an element of statutory theft.”);

Ragan v. State, No. 12-13-00183-CR, 2013 WL 6797734, at *3 (Tex. App.—Tyler

Dec. 20, 2013, no pet.) (mem. op., not designated for publication) (“When


                                          5
Appellant and his codefendant disconnected the transformers, they exercised

control over the property, which is consistent with the penal code’s definition for

‘appropriate.’ There is no evidence that if Appellant was guilty, he was guilty only

of ‘attempted theft.’”); Cantrell v. State, No. 05-92-01220-CR, 1994 WL 24386, at

*2 (Tex. App.—Dallas Jan. 31, 1994, no pet.) (mem. op., not designated for

publication) (“[T]o have the issue of attempted theft submitted to the jury, the

evidence must show that appellant intended to take the necklace, but

failed. . . . Although appellant argues that he never had full possession of the

necklace, a temporary deprivation with the requisite intent to permanently deprive

sufficiently establishes the crime of theft.”); Malone v. State, No. 05-05-01159-CR,

2006 WL 1727727, at *2 (Tex. App.—Dallas June 26, 2006, pet. ref’d) (mem. op.,

not designated for publication) (holding that defendant was not entitled to

attempted-theft instruction because he “had hooked the trailer to his van and had

moved the trailer, although only slightly.”).

      Palmer exercised control over the box when he removed the box from the

pickup truck. Although he was quickly arrested, his brief exercise of control was

an appropriation. Thus, there is no evidence that Palmer attempted the theft of, but

failed to appropriate, the box.




                                          6
                                    Conclusion

      The trial court did not abuse its discretion by refusing to include an

instruction on the lesser-included offense of attempted theft because there is no

evidence that, if Palmer is guilty, he is only guilty of attempted theft. Accordingly,

we overrule his single issue on appeal and affirm the judgment of the trial court.




                                              Harvey Brown
                                              Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Publish. TEX. R. APP. P. 47.2(b).




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