                                                                                     ACCEPTED
                                                                                06-14-00173-CR
                                                                      SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                          12/22/2014 4:44:47 PM
                                                                                DEBBIE AUTREY
                                                                                         CLERK




                                                                FILED IN
                                                         6th COURT OF APPEALS
                                                           TEXARKANA, TEXAS
                                                        12/30/2014 11:48:00 AM
                             No. 06-14-00173-CR              DEBBIE AUTREY
                                                                 Clerk
__________________________________________________________________________

               IN THE SIXTH DISTRICT COURT OF APPEALS
                         AT TEXARKANA, TEXAS
__________________________________________________________________________

                         ROCHELLE SCHELLING
                                          Appellant,

                                      v.

                          THE STATE OF TEXAS


                    Appealed from the 124th District Court
                            Gregg County, Texas
__________________________________________________________________________

                        BRIEF OF THE APPELLANT
__________________________________________________________________________

                                Clement Dunn
                            State Bar No. 06249300
                           140 East Tyler, Suite 240
                            Longview, Texas 75601
                           Telephone: 903-753-7071
                              Fax: 903-753-8783




                        ORAL ARGUMENT WAIVED
                        IDENTITY OF PARTIES AND COUNSEL

      Appellant certifies that the following is a complete list of all parties to the trial court’s
judgment and the names and addresses of their trial and appellate counsel.

1.     Appellant:      Rochelle Schelling

2.     Appellant’s Trial Counsel:      Clement Dunn
                                       Attorney at Law
                                       140 E. Tyler Street, Suite 240
                                       Longview, TX 75601
                                       TSB No. 06249300

3.     Appellant’s Counsel on Appeal:          Clement Dunn
                                               Attorney at Law
                                               140 E. Tyler Street, Suite 240
                                               Longview, TX 75601
                                               TSB No. 06249300

4.     Attorney for the State:         Christopher Botto
                                       Assistant District Attorney, Gregg County
                                       101 East Methvin St., Suite 333
                                       Longview, Texas 75601
                                       TSB No. 24064926




                                                 i
                                                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED .                  .......................................................... 1

STATEMENT OF THE FACTS.                            ................................................... 2

SUMMARY OF THE ARGUMENT .                                  ................................................ 3

ARGUMENT ..              .............................................................. 3

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   5

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     6

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                            6




                                                                                      ii
                                          INDEX OF AUTHORITIES

                                                          Cases



Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Jackson v. Virginia, 443 U.S. 307(1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Drichas v. State, 175 S.W. 3d 795,798 (Tex. Crim. App. 2005).. . . . . . . . . . . . . . . . . . . . . . 5




                                            Constitutional Provisions

Section 31.03(e)(4)(D) of the Texas Penal Code.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Section 31.03(a) of the Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Section 31.01(4) of the Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Section 15.01(a), Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                            iii
                               STATEMENT OF THE CASE

Offense:       Theft

Verdict:       Guilty; Fifteen (15) months confinement - Texas Department of Criminal
               Justice - State Jail Division

Date of Verdict:       June 30, 2014

Trial Court:   124th District Court, Gregg County, Texas.

       This case involves a prosecution for Theft, a State Jail Felony, based on an

enhancement of the underlying charge under Section 31.03(e)(4)(D), Texas Penal Code,

alleging prior theft convictions. C.R., at 4. The Appellant waved her right to a jury trial, and

proceeded in a bench trial on her plea of “not guilty.” C.R., at 10;12. At the conclusion of

this trial, the Court found the Appellant “guilty.” C.R., at 112; R.R. 3, at 46-48. Following

the preparation of a presentence report, the Court held a hearing on sentencing; at the

conclusion of that hearing, the Court sentenced the Appellate to serve fifteen months’

confinement in a State Jail. R.R.3, at 48; R.R.4, at 16.



                   STATEMENT REGARDING ORAL ARGUMENT

       Believing the instant case contains issues capable of resolution on the basis of record

and the Appellant respectfully does not request oral argument.



                                    ISSUE PRESENTED

       The evidence at trial was legally insufficient to show beyond a reasonable doubt that

the Appellant committed theft.



BRIEF OF APPELLANT, ROCHELLE

                                                                                          PAGE 1
                               STATEMENT OF THE FACTS

       At trial, the State first called Destinee Jeffery to testify. Ms. Jeffery testified that she

was working at Wal-Mart on the date of this alleged theft. R.R.3, at 13-14. She described her

encounter with the Appellant, who pushed a shopping cart containing several items past the area

when the cash registers are within the store. Seeing this, Ms. Jeffery intervened, grabbing the

cart, and confronting the Appellant. R.R.3, at 14-16.

       When Ms. Jeffery asked the Appellant if she had a receipt for the merchandise in the

shopping cart, the Appellant replied that she was going to the car to get her money. The

Appellant left the store–leaving all of the merchandise, still in the shopping cart, behind. Ms.

Jeffery watched her walking into the parking lot, and testified that she tried to get in a car, but

was denied permission by the people in it; the Appellant next walked towards a gas station and

did get into a car with someone. R.R.3, at 15-16.

       Officers of the Longview Police Department arrested the Appellant approximately one

and a half miles away, about twenty-five minutes after the event in question had occured at Wal-

Mart. R.R.3, at 31-34. Officer Glenn Derr of the Longview Police Department testified that after

taking the Appellant into custody, he returned her to Wal-Mart. Then she was identified as the

person involved in the encounter with Ms. Jeffery. Id., at 34-37.

       The State also introduced a videotape made by recording equipment at Wal-Mart. This

tape depicts the encounter between Ms. Jeffery and the Appellant at the front of the store.

Offered at R.R.3, at 19, this appears as Exhibit 3(R.R.5); the tape shows Ms. Jeffery

approaching the Appellant and grabbing the shopping cart within the store. The Appellant never

leaves the store with any of the property she is alleged to have stolen.



BRIEF OF APPELLANT, ROCHELLE

                                                                                           PAGE 2
                           SUMMARY OF THE ARGUMENT

       The State failed to prove that the Appellant committed theft by legally sufficient

evidence: the record that the Appellant never completed an “appropriation” of the property.



                                        ARGUMENT

       Section 31.03(a) of the Texas Penal Code defines the offense of theft:

               (a) A person commits an offense of he unlawfully appropriates property with
               intent to deprive the owner of property.

       Section 31.01(4) of the Penal Code defines the term “appropriate”:

               (4) “Appropriate” means:
               (A) to bring about a transfer of 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.

In the instant case, the Appellant neither “acquired” nor “exercised control” over the property

she allegedly “appropriated”.

       Several salient points arise regarding the issue:

1.     The Appellant never left premises under the control of the owner of the property. She

       never exited the store. That the Appellant never “acquired” or “controlled” the property

       becomes clear when a store employee takes control of the shopping cart–and the

       property within it–entirely within the store itself.

2.     The property at all times remained in the shopping cart–which belonged to the store (the

       “owner”). The indictment does not allege–and no other implication arises from the

       record–that the Appellant “stole,” or committed theft, of the shopping cart itself. Thus

       at all times the property remained within premises (the store itself) controlled by the

BRIEF OF APPELLANT, ROCHELLE

                                                                                       PAGE 3
             owner and within other property (the shopping cart) in the possession of and under the

             control of the owner(i.e., not alleged to have been “appropriated by the Appellant).

    3.       The facts reflect no concealment, or effort to conceal, any of the items from plain view

             of the public, store employees, or cameras, by the Appellant.1

    4.       The Appellant did not alter, impair, or damage any of the items.

    5.       The “tags,” indicating ownership by the store, were not removed, altered, or impaired

             in any way by the Appellant.

    6.       The Appellant at no time trespassed or in any way entered any area not open to the

             public.

    7.       The record indicates no act on the part of the Appellant to conceal herself from the

             public view, or disguise her appearance in any way.

                       The Appellant thus did not “acquire” or “exercise control” over the property in

    any meaningful or substantive sense. If, arguendo, the Appellant did manifest an “intent” to

    commit theft, the facts show an “attempt” only–not a completed theft. Section 15.01(a), Texas

    Penal Code, states:

                       (A) A person commits an offense 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.

    The Appellant, whatever the intent, failed to effect the act of theft: neither “acquisition” nor

    “exercise of control” reached completion. The enhancement of a theft that would otherwise fall

    into misdemeanor classification to a State jail Felony under 31.03(e)(4)(D), Texas Penal Code,

         1
         See and cf. Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1981), on which the trial
court relied. See R.R.3, at 47. In Hill, the appellant had actually concealed a handgun (the stolen
property) under his shirt. Id., at 521. This provides a significant distinction between the facts of
Hill and the facts of the instant case.
    BRIEF OF APPELLANT, ROCHELLE

                                                                                              PAGE 4
supra, requires a completed theft. Id. An “attempt”does not suffice for application of this

enhancement provision. Id. Thus is the evidence against Appellant “legally insufficient” as that

phase is understood in Jackson v. Virginia, 443 U.S. 307(1979)(relevant question is whether

after viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt). See also:

Drichas v. State, 175 S.W. 3d 795,798 (Tex. Crim. App. 2005)(applying Jackson standard).




                                          PRAYER

       The Appellant respectfully requests this case be reversed and dismissed.



                                                      Respectfully submitted,



                                                      __/s/ Clement Dunn_______________

                                                      140 East Tyler Street, Suite 240

                                                      Longview, Texas 75601

                                                      (903) 753-7071 Fax: 903-753-8783

                                                      State Bar No. 06249300




BRIEF OF APPELLANT, ROCHELLE

                                                                                         PAGE 5
                              CERTIFICATE OF SERVICE



       I hereby certify that a true and correct copy of this brief was delivered to the Gregg



County District Attorney’s Office, Longview, Texas on this 22nd day of December 2014.




                                              __/s/ Clement Dunn_______________




                           CERTIFICATE OF WORD COUNT



       I hereby certify that a total of 1548 words are included in this brief.




                                              __/s/ Clement Dunn_______________




BRIEF OF APPELLANT, ROCHELLE




                                                                                        PAGE 6
