Affirmed and Opinion filed February 4, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-01130-CR

                   MICHAEL ANGEL RAMIREZ, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 182nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1334211

                                    OPINION

      Appellant was charged with aggravated robbery with a deadly weapon, and
convicted of the lesser-included offense of robbery. Punishment was assessed at
twenty years’ imprisonment. On appeal, we are asked to consider two issues:
(1) whether the trial court erroneously denied an instruction on the lesser-included
offense of theft, and (2) whether appellant was denied the effective assistance of
trial counsel. We affirm the judgment of the trial court.
                                  BACKGROUND

      The complaining witness, Cesar Lopez, testified that appellant stole his truck
as he was attempting to leave a convenience store. According to Lopez, appellant
approached the driver’s side of the vehicle, lifted his shirt, and displayed what
appeared to be the black handle of a firearm. Appellant made no verbal demands,
but Lopez, feeling threatened, surrendered his keys. Appellant drove away and
Lopez called police. Approximately fifteen to twenty minutes later, police
encountered appellant driving the stolen truck. He was pulled over and arrested on
the scene, but a firearm was not recovered in his possession.

      Appellant testified in his own defense at trial. He admitted to stealing the
truck on an impulse, but he asserted a different version of events. Appellant
claimed that he found the truck unlocked, engine running, and with no person
inside. Appellant testified that he took the truck because he wanted to visit a friend
without having to ask his dad for a ride. Appellant said that he never had a gun and
he was surprised to be charged with aggravated robbery. At most, he anticipated a
charge of just “a simple unauthorized use.”

      After both sides rested, appellant requested a jury instruction on the lesser-
included offenses of robbery and theft. The trial court agreed that robbery had been
raised by the evidence, but it denied the request as to theft. The court stated that no
evidence of the truck’s value had been admitted, and thus, there was no basis for
instructing the jury on a specific grade of theft.

                         LESSER-INCLUDED OFFENSE

      We review the trial court’s decision on the submission of a lesser-included
offense for an abuse of discretion. See Jackson v. State, 160 S.W.3d 568, 575 (Tex.
Crim. App. 2005). The trial court abuses its discretion when its decision is


                                           2
arbitrary, unreasonable, or without reference to guiding rules or principles. See
Makeig v. State, 802 S.W.2d 59, 62 (Tex. Crim. App. 1990). Because the trial court
has no discretion in determining the applicable law, the trial court also abuses its
discretion when it fails to analyze the law correctly and apply it to the facts of the
case. See State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004).

      We apply a two-prong test when determining whether a defendant is entitled
to an instruction on a lesser-included offense. See Wortham v. State, 412 S.W.3d
552, 554 (Tex. Crim. App. 2013); Rousseau v. State, 855 S.W.2d 666, 672 (Tex.
Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981).
First, we consider whether the lesser-included offense is included within the proof
necessary to establish the charged offense. See Tex. Code Crim. Proc. art. 37.09;
Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008). If it is, we then
examine whether there is evidence in the record that would permit a jury to
rationally find that if the defendant is guilty, he is guilty of only the lesser-included
offense. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). The
evidence must establish that the lesser-included offense is a valid, rational
alternative to the charged offense. See Segundo v. State, 270 S.W.3d 79, 90–91
(Tex. Crim. App. 2008). Anything more than a scintilla of evidence is sufficient to
entitle a defendant to the lesser charge. See Goad v. State, 354 S.W.3d 443, 446
(Tex. Crim. App. 2011). We review all of the evidence in the light most favorable
to the requested lesser-included offense, regardless of whether the evidence was
produced by the State or the defendant, or whether the evidence was strong, weak,
unimpeached, or contradicted. See Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim.
App. 1985).

      There is no dispute that theft is a lesser-included offense of aggravated
robbery. See Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). Thus, we

                                           3
consider only whether the record contains some evidence to support an instruction
for theft.

       A person commits a theft “if he unlawfully appropriates property with intent
to deprive the owner of property.” See Tex. Penal Code § 31.03. The Penal Code
describes several grades of theft ranging from a Class C misdemeanor to a felony
of the first degree. See id. § 31.03(e). With few exceptions not applicable here, the
only element distinguishing one grade of theft from another is the value of the
property taken. See id. Under Texas law, the value of the property taken is an
essential element of the offense. See Simmons v. State, 109 S.W.3d 469, 478–79
(Tex. Crim. App. 2003); Sowders v. State, 693 S.W.2d 448, 450 (Tex. Crim. App.
1985); Christiansen v. State, 575 S.W.2d 42, 44 (Tex. Crim. App. [Panel Op.]
1979); McKnight v. State, 387 S.W.2d 662, 663 (Tex. Crim. App. 1965).

       The record in this case reflects that appellant stole a 2004 Toyota Tacoma.
The truck was described as black and having a special chrome bumper. Aside from
these basic characteristics, there was no testimony about the truck’s condition or
value. When appellant requested his theft instruction, he sought just “a simple
theft,” arguing that the jury could have found that there was no weapon or show of
force. The trial court responded, “What theft would I give them? I mean, I can’t
guess at a value. There’s no auto theft, per se.” We agree with the trial court that
evidence of value was necessary to determine the grade of theft. Without such
evidence, appellant did not establish his entitlement to an instruction on the lesser-
included offense. See Sanders v. State, 664 S.W.2d 705, 709 (Tex. Crim. App.
1982) (op. on reh’g); Bonner v. State, 820 S.W.2d 25, 27 (Tex. App.—Houston
[14th Dist.] 1991, pet. ref’d).

       Appellant acknowledges in his brief that evidence of value is necessary to
support a conviction for theft. Yet, citing Williams v. State, 314 S.W.3d 45 (Tex.

                                          4
App.—Tyler 2010, pet. ref’d), appellant contends that he may still have been
entitled to the instruction. In Williams, the defendant was accused of stealing
various items from a car, including a compact disk player, several compact disks,
and a cellular telephone. Id. at 47. The State charged the defendant with aggravated
robbery because the defendant allegedly exhibited a pocket knife after two
bystanders intervened. Id. The Tyler Court of Appeals held that the trial court erred
by refusing a requested instruction on the lesser-included offense of theft, even
though “[t]he value of the items in question here was not conclusively shown.” Id.
at 53. In its harm analysis, the court considered the likely value of the stolen
property, noting that the defendant was sentenced within the range of a first degree
felony, even though the value of the property taken could not have reasonably
exceeded the limits of a misdemeanor theft. See id. (“[T]heft of property valued at
less than $1,500 is a misdemeanor. Appellant would have had to steal property
valued at $200,000 or more to have been eligible for punishment for a first degree
felony, which is what he faced in this case.”).

       In this case, appellant was convicted of a second degree felony and
sentenced to twenty years’ imprisonment. To support a felony theft conviction in
the second degree, the value of the truck must have exceeded $100,000. See Tex.
Penal Code § 31.03(e)(6). For a theft conviction in the third degree, the property
must have been valued between $20,000 and $100,000.1 See id. § 31.03(e)(5). And
for a state jail felony, the value must have fallen between $1,500 and $20,000.2 See
id. § 31.03(e)(4).



       1
         A third degree felony with appellant’s record would have carried a maximum sentence
of twenty years’ imprisonment.
       2
         A state jail felony with appellant’s record would have carried a maximum sentence of
two years’ imprisonment.

                                             5
       As a matter of common knowledge, an eight-year old truck is most likely to
fall within the range of value for a state jail felony theft. However, a requested
instruction cannot be supported by speculation alone. Our court has specifically
held that a defendant is not entitled to an instruction on the lesser-included offense
of theft without clear evidence of value in the record. See Bonner, 820 S.W.2d at
27. In Bonner, the defendant was charged with aggravated robbery after stealing
merchandise from a Walmart. A witness described the stolen items as “tennis shoes
and cigarettes and things.” Id. The defendant requested that the jury receive an
instruction for a Class A misdemeanor theft,3 but the trial court refused. On appeal,
we affirmed the defendant’s conviction because the record contained no testimony
of the value of the items stolen. Id.

       The law has not changed since Bonner, so we must follow our own
precedent. Because there is no evidence of the value of the truck stolen by
appellant, we conclude that the trial court properly refused the request for an
instruction on the lesser-included offense of theft. Accordingly, we overrule
appellant’s first issue.

                  INAFFECTIVE ASSISTANCE OF COUNSEL

       In his second issue, appellant asserts a claim for ineffective assistance of
counsel, complaining of his counsel’s failure to elicit testimony about the value of
the stolen truck. But for this failure, appellant contends that the trial court would
have granted his requested instruction on the lesser-included offense of theft.

       We examine claims of ineffective assistance of counsel under the standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland,
       3
         At the time of Bonner, a person committed a Class A misdemeanor theft if the value of
the property taken was between $200 and $750. To support a felony conviction in the second
degree, the defendant in Bonner would have had to have stolen property valued at over
$20,000—unlikely based on the description of the goods.

                                              6
appellant must prove that his trial counsel’s representation was deficient, and that
the deficient performance was so serious that it deprived him of a fair trial. Id. at
687. Counsel’s representation is deficient if it falls below an objective standard of
reasonableness. Id. at 688. This deficiency will only deprive appellant of a fair trial
when counsel’s performance prejudices appellant’s defense. Id. at 691–92. To
demonstrate prejudice, appellant must show a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694. Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the claim of ineffectiveness. Id. at 697.
This test is applied to claims arising under both the United States and Texas
Constitutions. See Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App.
1986).

      Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that the attorney’s actions were reasonably
professional and were motivated by sound trial strategy. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to trial
counsel’s strategy, we will not conclude that appellant received ineffective
assistance unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005). Rarely will the trial record contain sufficient information
to permit a reviewing court to fairly evaluate the merits of such a serious
allegation. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the
majority of cases, the appellant is unable to meet the first prong of the Strickland
test because the record on direct appeal is underdeveloped and does not adequately
reflect the alleged failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430
(Tex. Crim. App. 2007).


                                          7
      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “[I]solated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for
examination.” McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992),
overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App.
1994). Moreover, “[i]t is not sufficient that appellant show, with the benefit of
hindsight, that his counsel’s actions or omissions during trial were merely of
questionable competence.” Mata, 226 S.W.3d at 430. Rather, to establish that the
attorney’s acts or omissions were outside the range of professionally competent
assistance, appellant must show that counsel’s errors were so serious that he was
not functioning as counsel. See Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.
App. 1995).

      The record does not reveal counsel’s reasons for failing to elicit testimony of
the truck’s value. Appellant did not move for a new trial, and his trial counsel did
not file an affidavit. However, trial counsel could have easily asked the
complainant about the value of his truck or submitted other evidence pertaining to
its value. As trial counsel was aware that theft was a lesser-included offense and
wanted the jury instructed on it, we can think of no strategic reason for counsel’s
failure to examine the witnesses on this issue. As discussed above, our opinion in
Bonner makes clear that there must be some evidence of value before a defendant
may be entitled to an instruction on theft. But perhaps counsel relied on Williams
in not eliciting the testimony.



                                         8
       With an ineffective assistance claim, appellant must still establish that he
was prejudiced by counsel’s deficient performance before he can be entitled to
relief. To demonstrate prejudice, appellant must show a reasonable probability that
the outcome of the proceedings would have been different—i.e., that the jury
would have convicted him of theft, but not of robbery. For the reasons that follow,
we conclude that appellant failed to satisfy this burden.

      To support a conviction for robbery, the State was required to prove that
appellant, while in the course of committing a theft, knowingly or intentionally
threatened the complainant, or placed him in fear of imminent bodily injury or
death. See Tex. Penal Code § 29.02(a)(2). Because appellant admitted that he stole
the truck, the only question of fact was whether appellant threatened the
complainant or placed him in fear of imminent bodily injury or death. Appellant
denied that he did either, claiming that he stole the truck because the engine was
already running and the truck was left unattended. The complainant, by contrast,
testified that he had his keys on his person, and he only surrendered them after
feeling threatened by appellant’s actions. The jury was free to accept the
complainant as a more credible witness. The jury heard the 911 tape, in which the
complainant reported to having just been robbed by a Chicano male. A police
officer testified that the complainant identified appellant at the scene of the arrest,
thus corroborating the complainant’s account. If the complainant had not been
threatened, he would have been unable to identify appellant. The jury would have
had to reject both the complainant’s testimony and the officer’s testimony. The
State also established that appellant lied to authorities by giving conflicting stories
of the events. Appellant’s credibility was further diminished by evidence showing
that he had prior convictions for theft and burglary of a motor vehicle. Based on
the record as a whole, we conclude that appellant failed to demonstrate a


                                          9
reasonable probability that the outcome of the proceedings would have been
different but for counsel’s failure to elicit testimony of the stolen truck’s value. We
overrule appellant’s second issue.

                                  CONCLUSION

      The judgment of the trial court is affirmed.




                                        /s/    Tracy Christopher
                                               Justice



Panel consists of Justices Christopher, Donovan, and Brown.
Publish — Tex. R. App. P. 47.2(b).




                                          10
