                                                                                  ACCEPTED
                                                                              14-15-00511-CR
                                                              FOURTEENTH COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                        12/11/2015 2:51:11 PM
                                                                        CHRISTOPHER PRINE
                                                                                       CLERK

                      NO. 14-15-00511-CR

               IN THE COURT OF APPEALS             FILED IN
         FOR THE FOURTEENTH DISTRICT OF TEXAS14thHOUSTON,
                                                  COURT OF APPEALS
                                                           TEXAS
                                                      12/11/2015 2:51:11 PM
                                                      CHRISTOPHER A. PRINE
                KENASHICA DARPRE DAVISON                       Clerk


                            Appellant

                               v.

                     THE STATE OF TEXAS
                            Appellee


           On Appeal from Cause Number 1451009
      From the 351st District Court of Harris County, Texas



                    BRIEF FOR APPELLANT



ORAL ARGUMENT REQUESTED                   ALEXANDER BUNIN
                                          Chief Public Defender
                                          Harris County, Texas

                                          MELISSA MARTIN
                                          Assistant Public Defender
                                          Harris County, Texas
                                          TBN. 24002532
                                          1201 Franklin, 13th floor
                                          Houston, Texas 77002
                                          Phone: (713) 368-0016
                                          Fax: (713) 437-4319

                                          Counsel for Appellant
               IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                            Kenashica Darpre Davison
                                      SPN# 01678253
                                      1200 Baker St
                                      Houston, TX 77002

TRIAL PROSECUTORS:                    Brittany Aaron
                                      Assistant District Attorney
                                      Harris County, Texas
                                      1201 Franklin Avenue, 6th Fl
                                      Houston, TX77002

DEFENSE COUNSEL AT TRIAL:             Patrick J. Ruzzo
                                      Attorney at Law
                                      PO Box 70316
                                      Houston, TX 77270

PRESIDING JUDGE:                      Hon. Ruben Guerrero
                                      351st District Court
                                      Harris County, Texas
                                      1201 Franklin Avenue, 14th Fl
                                      Houston, TX 77002

COUNSEL ON APPEAL FOR APPELLANT:      Melissa Martin
                                      Assistant Public Defender
                                      Harris County, Texas
                                      1201 Franklin Avenue, 13th floor
                                      Houston, TX 77002




                              ii
                                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii

TABLE OF CONTENTS .............................................................................................................iii

INDEX OF AUTHORITIES ........................................................................................................iv

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

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

          THE  TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST TO
          INSTRUCT THE JURY ON A CLASS A MISDEMEANOR LESSER INCLUDED
          OFFENSE AND APPELLANT WAS EGREGIOUSLY HARMED.

STATEMENT OF FACTS ............................................................................................................ 1

SUMMARY OF THE ARGUMENT .............................................................................................. 4

ARGUMENT .............................................................................................................................. 4

     A. STANDARD OF REVIEW AND PERTINENT LAW ........................................................ 4

     B. APPELLANT WAS ENTITLED TO LESSER-INCLUDED CHARGE ................................ 5

          1. MISDEMEANOR THEFT IS A LESSER-INCLUDED OFFENSE OF FELONY THEFT 5

          2. MORE THAN A SCINTILLA OF EVIDENCE SUPPORTED THE LESSER-INCLUDED
             OFFENSE ................................................................................................................. 6

     C. APPELLANT WAS HARMED ........................................................................................ 10

PRAYER .................................................................................................................................. 10

CERTIFICATE OF SERVICE .................................................................................................... 15

CERTIFICATE OF COMPLIANCE............................................................................................ 16



                                                                    iii
                                           INDEX OF AUTHORITIES

Cases

Almanza v.State, 645 S.W. 2d 885 (Tex. Crim. App. 1984) ...................................... 4, 5, 10

Haley v. State, 369 S.W.3d 756 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ..... 5, 10

Hall v. State, 255 S.W.3d 524 (Tex. Crim. App. 2007) .................................................... 4, 9

Olivas v. State, 202 S.W.3d 137 (Tex. Crim. App. 2006) ................................................... 10

Statutes

Tex. Code Crim. Proc, art. 37.09 (1) .................................................................................... 4

Tex. Code Crim. Proc, art. 37.09 (2) .................................................................................... 4

Tex. Penal Code § 31.02(e)(4)(A). ........................................................................................ 3

Tex. Penal Code §31.03 (a) (West 2015).......................................................................... 4, 6

Tex. Penal Code §31.03 (b)(1) (West 2015) .................................................................... 4, 6

Tex. Penal Code §31.03 (e)(3) (West 2015) ..................................................................... 4, 6

Tex. Penal Code §31.03 (4)(A) (West 2015) .................................................................... 4, 6


Rules

Tex. Rule Crim. Proc., art. 36. 19 (West 2015) ................................................................... 4

Tex. Rule Crim. Proc., art. 37.09 (1) (West 2015). ............................................................. 5

Tex. Rule Crim. Proc., art. 37.09 (2) (West 2015). ............................................................. 5




                                                            iv
                                 Statement of the Case

       Appellant Kenashica Darpre Davison was indicted on a charge of state-jail felony

theft (C.R. at 12). The state alleged two prior state-jail felony thefts. The case was tried

to a jury, which convicted her on June 3, 2015 (C.R. at 67; 3 R.R. at 61). Ms. Davison

and the state agreed to a sentence of four years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice and the trial court upheld the

agreement after appellant pled “True” to the two enhancement paragraphs (4 R.R. at 5-

7).

                                    Issue Presented

       The trial court erred in denying appellant’s request to instruct the jury on
       a Class A misdemeanor lesser included offense and appellant was
       egregiously harmed.

                                   Statement of Facts

       The incident took place at T.J. Maxx on Richmond, near the Houston Galleria

(3 R.R. at 10).

       Timothy McCoy testified for the state that he works for TJX Companies on a

“national task force, ORC investigator, which is organized retail crime” (3 R.R. at 12).

Mr. McCoy described his job as investigating various types of organized crimes for the

Houston area stores owned by the TJX Companies, one of which is the T.J. Maxx on

Richmond (3 R.R. at 12-13).



                                             1
       On November 24, 2014 McCoy received a call regarding the Richmond store,

where he was told there had been a theft (3 R.R. at 13). When he arrived at the store he

reviewed store videos and “saw that somebody had came (sic) into the store, selected

some merchandise and walked out with the alarm going off without paying for the

merchandise” (3 R.R. at 14). The state introduced State’s Exhibit 15, showing clips from

different cameras, at different times (3 R.R. at 15; 5 R.R. at State’s Ex. 15).

       The first clip showed a woman walking into the store, who McCoy testified he

knew to be appellant from other investigations—“…I know her from sight and from

name”—he then made an in-court identification of appellant (3 R.R. at 16). The woman

was carrying a “reusable shopping bag that appeared to be empty” (3 R.R. at 16). The

next clip showed the same woman at “the Department 7 runway. And this is where we

keep high-dollar handbags and high-dollar fashion stuff” (3 R.R. at 16-17). McCoy

described the woman they were watching at that time as “wearing the bag on her arm

and the white cap on her head with a dark-colored coat” (3 R.R. at 17).

       McCoy testified that in his experience, women carrying empty bags when they

come into a store are viewed by experts in his field to be “alert signal[s]” (3 R.R. at 17).

“Another thing we look at is how the particular individual is behaving, see if they’re

looking around at cameras, looking around for associates, things of that nature. Also,

the department itself is a high-dollar department where almost if you take one thing out

of there, it’s considered what the County considers a felony, so we watch that area as

well” (3 R.R. at 18). McCoy agreed with the state that “those indicators” had been
                                             2
apparent to him in the tape (3 R.R.at 18).The state led McCoy through the rest of the

video, showing the subject moving through the store and then going out by the only

entrance and exit doors (3 R.R. at 18-19).

       The state also entered several still photographs made from the video through

McCoy that showed the suspect entering the store with a bag that appeared to be empty,

picking up two purses from a display table, the same person in another part of the store,

then exiting with the same bag, now looking full (3 R.R. at 20; 5 R.R. at State’s Exs. 3-

12).

       The jury next heard from Sally Carlson, a long-time sales manager with T.J. Maxx,

who was present on the day of the incident, when an alarm signaled that merchandise

had been taken out of the store (3 R.R. at 29-30). After watching the video, Carlson

determined which purses had been taken and determined their value from a “book with

pictures of every runway purse that we receive with style numbers and prices” (3 R.R.

at 31). Through Carlson, the state introduced a “receipt that you can put a department

and style number and it will come up with a price” (3 R.R. at 32). This process is what

the store does when things are stolen, “[to] determine the correct value” and the receipt

is kept in the loss prevention record (3 R.R. at 32; 5 R.R. at State’s Ex. 16). The receipt

showed the value of the two items to be $2349.98, which is over the statutory amount

for a state jail felony (3 R.R. at 33). Tex. Penal Code § 31.02(e)(4)(A).

       Gloria Whitman, another organized crime and retail investigator for Marmaxx

Group, which owns T.J. Maxx, testified as the person “with more right to the property
                                             3
than Kenashica Davison” (3 R.R. at 44). Whitman testified that she had investigated the

incident and had determined one of the two purses had been marked down by $100

from the price testified to by Carlson, but that the total value price was still over the

felony amount of $1500.00 (3 R.R. at 43).

                               Summary of Argument

      Class A misdemeanor theft is a lesser included offense of state-jail felony theft.

Tex. Code Crim. Proc, art. 37.09 (1) & (2); Tex. Penal Code 31.03(a), (b)(1), (e)(3) &

(4)(A)(West 2015). There was more than a scintilla of evidence that appellant was

entitled to the misdemeanor instruction. See Hall v. State, 255 S.W.3d 524 (Tex. Crim.

App. 2007). Appellant preserved error and showed some harm, therefore the error is

reversible. Almanza v.State, 645 S.W. 2d 885 (Tex. Crim. App. 1984); Tex. Rules Crim.

Proc. 36. 19 (West 2015).

                                   Issue Presented

      The trial court erred in denying appellant’s request to instruct the jury on
      a Class A misdemeanor lesser included offense and appellant was harmed.

                                      Argument

A.    Standard of Review and Pertinent Law

      Whether or not an offense is a lesser-included offense of the alleged offense is a

matter of law. Hall v. State, 225 S.W.3d at 535. It does not depend on the evidence to

be produced at trial. It may be, and to provide notice to the defendant must be, capable

of being performed before trial by comparing the elements of the offense as they are

                                            4
alleged in the indictment or information with the elements of the potential lesser-

included offense. Id., at 535-36.

       A defendant is entitled to an instruction on a lesser-included offense
       where the proof for the offense charged includes the proof necessary to
       establish the lesser-included offense and there is some evidence in the
       record that would permit a jury rationally to find that if the defendant is
       guilty, he is guilty only of the lesser-included offense. In this step of the
       analysis, anything more than a scintilla of evidence may be sufficient to
       entitle a defendant to a lesser charge. In other words, the evidence must
       establish the lesser-included offense as “a valid, rational alternative to the
       charged offense.”

Id., at 536, citations omitted.

       Where, as here, there was an objection to the jury charge and a request for a

lesser-included offense, a court of appeals will reverse if there is “some harm” to the

appellant. Haley v. State, 369 S.W.3d 756, 766 (Tex. App.—Houston [14th Dist.] 2013,

no pet.), citing Almanza v. State, 686 S.W.2d at 171).

B.     Appellant was Entitled to Lesser-Included Charge

       1.     Misdemeanor theft is a lesser-included offense of felony theft.

       Two factors that make an offense a lesser-included offense are (1) if it is

established by proof of the same or less than all of the facts required to establish the

commission of the offense charged; or (2) if it differs from the offense charged only in

the respect that a less serious injury…to the person…suffices to establish its

commission. Tex. Rule Crim. Proc., art. 37.09(1) & (2) (West 2015).

       In this case, the charged offense and the proposed lesser-included offense are

contained within the same statute; the only difference is the amount of loss to the
                                             5
complainant—$500 or more but less than $1500 for the misdemeanor; $1500 or more

but less than $20,000 for the state jail felony. Tex. Penal Code §31.03 (a), (b)(1), (e)(3)

& (4)(A) (West 2015).

       2.     More than a scintilla of evidence supported the lesser-included offense.

       Defense counsel objected to the court’s charge and requested a lesser-included

charge of Class A Misdemeanor be added to the charge based on “the testimony of

Sally Carlson where she testified that the merchandise that is alleged to have been stolen

in the indictment could be sold for 50 percent less than the $2543.85 that she testified

was the ticketed price” (3 R.R. at 50). Although Ms. Carlson did not testify to the

possibility of a 50% markdown of merchandise at T.J. Maxx, she did agree that

markdowns occur “at some point” (3 R.R. at 36). And Whitman, on direct examination,

implied that one of the purses at issue had been marked down at the time it was allegedly

stolen (3 R.R. at 43).

       Carlson testified she was able to determine the value of the two purses that were

allegedly taken because the store keeps “a book with pictures of every runway purse

that we receive with style numbers and prices” (3 R.R. at 31). The book was not entered

into evidence; instead, the state showed Carlson what she described as “a receipt that

you can put a department and style number and it will come up with a price” (3 R.R. at

32). Carlson stated this procedure was typically done to determine the correct value of

a stolen item (3 R.R. at 32). The “receipt” showed a Chloe purse valued at $1499 and a

Marc Jacobs purse valued at $849.99” (3 R.R. at 33 & 34). The state did not ask her if
                                            6
the values listed in the book of pictures were the same as those on the “receipt” (3 R.R.

at 31-34).

       Defense counsel elicited from Carlson that “at some point” merchandise at the

store is “put on a clearance rack and sold at a price that’s reduced from the ticketed

price” (3 R.R. at 36). Reductions in the price of items are not noted in the picture log

(3 R.R. at 36). When runway items are reduced they remain in the same place as before

they are reduced (3 R.R. at 36). To Carlson’s knowledge, neither of the purses allegedly

taken by Ms. Davison had been reduced (3 R.R. at 36).

       In fact, however, according to Ms. Whitman, her investigation had revealed the

Chloe purse was priced at $1399.99 (3 R.R. at 43). Her testimony does not reveal how

Whitman determined the purse was valued at less than Carlton’s “receipt” nor why the

“receipt” had a higher price. Whitman said she was aware the store believed the purse

was valued at $1499.99 (3 R.R. at 43).Whitman never stated the discrepancy was due to

a discounted price but when the state asked her “…to your knowledge, was either of

the bags discounted any further than that?” Whitman responded, “Not that I know of”

(3 R.R. at 43).

       On cross-examination, the following exchange occurred:

       Q.     When merchandise is placed out on the sales floor, it is – it has a
              tag on it, right?

       A.     Yes, ma’am – yes, sir.

       Q.     And that tag has what we’ll call the ticketed sales price, correct?

                                            7
       A.     Right.

       Q.      And at some point it’s typical for merchandise that has been there
              for a period of time to be discounted, correct?

       A.     I believe you call that a markdown.

       Q.     A markdown, right?

       A.     Yes.

       Q.     And do you know whether or not Chloe and Marc Jacobs bags,
              such as the ones that we’re talking about, were later marked down?

       A.     No sir, I do not.

(3 R.R. at 44-45).

       Ms. Carlson testified the store does not keep a log of stolen items and such items

are not “reflected in [the store’s] accounts (3 R.R. at 39). Ms. Whitman stated

T.J. Maxx has a system for recording the values of stolen items, though she did not

elaborate on from where the information comes (3 R.R. at 45). Given that the store in

question apparently keeps neither a log of reductions nor of the losses from thefts, it is

difficult to see how the value of items could be known with certainty. All three of the

state’s witnesses testified their opinion was the value of the two purses was “over

$1500” but, essentially, these assertions were based only on the best of their knowledge.

       McCoy stated the “Department 7 Runway” section “is a high-dollar department

where almost if you take one thing out of there, it’s considered what the County

considers a felony” (3 R.R. at 18). Carlson testified that the “receipt” valued the items

at over $1500 and agreed with the state that the two purses had not been reduced “to
                                            8
the best of [her] knowledge” (3 R.R. at 36). Whitman testified that although one of the

purses was worth $100 less than Carlson claimed, the value of the two was “over $1500”

(3 R.R. at 43 & 45).

       All of the above evidence gives rise to the possibility that not one of the state’s

witnesses actually knew the value of the purses on the day they were taken; they knew

the value on the day they were entered into the picture log and tagged—though no one

testified to what those values were when they were entered—and they knew what the

store “receipt” said was their prices on the day of the incident. One of those prices,

however, was wrong according to Whitman, but she failed to explain how she knew

that and was unable to say whether they had been further reduced when asked by

defense counsel.

       A jury rationally could have found from the above evidence that if the appellant

was guilty, she was guilty only of the lesser-included offense; the evidence established a

valid, rational alternative to the charged offense. Hall v. State, 225 S.W.3d at 535-36. It

was, therefore, error for the trial court to fail to give the lesser-included instruction.1




1
  Defense counsel’s inexplicable desire to put on the record his hours of research into the prices of
similar purses from different sources and to reassure the trial court that neither he nor the state was
able to locate the same pair of purses being sold for under $1500 is, of course, not evidence.
                                                  9
C.       Appellant was harmed

         “The appropriate standard for all errors in the jury charge, statutory or

constitutional, is that set out in Almanza.” Olivas v. State, 202 S.W.3d 137, 145 (Tex.

Crim. App. 2006).

         If the error in the charge was the subject of a timely objection in the trial
         court, then reversal is required if the error is “calculated to injure the rights
         of defendant,” which means no more than some harm must result from
         the error.

Almanza v. State, 686 S.W.2d at 171.

         Had the jury been given the option of convicting Ms. Davison of the Class A

misdemeanor theft, rather than the state-jail felony theft, and it chose the former, Ms.

Davison would have faced an enhanced sentence of 90 days up to one year in county

jail, rather than the enhanced third-degree felony range of two to ten years in the

Institutional Division of the Texas Department of Criminal Justice. Certainly, the loss

of that possibility due to the trial court’s error in denying the lesser-included request

caused appellant “some harm” and the conviction should be vacated. Almanza v. State,

686 S.W.2d at 171; Haley v. State, 369 S.W.3d at 766.

                                             Prayer

         In view of the foregoing argument, appellant requests this Court reverse her

conviction and remand her case to the trial court with instructions to grant her a new

trial.



                                                10
                                               Respectfully submitted,

                                               ALEXANDER BUNIN
                                               Chief Public Defender
                                               Harris County Texas


                                               /s/Melissa Martin
                                               ______________________________
                                               Melissa Martin
                                               Assistant Public Defender
                                               Harris County Texas
                                               1201 Franklin 13th Floor
                                               Houston Texas 77002
                                               (713) 368-0016
                                               (713) 437-4319 e-fax
                                               TBA No. 24002532




                             CERTIFICATE OF SERVICE

      I certify that I provided a copy of the foregoing brief to the Harris County

District Attorney on the day the brief was accepted.

                                               /s/ Melissa Martin
                                               ______________________________
                                               MELISSA MARTIN
                                               Assistant Public Defender




                                          11
                           CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.    Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains 2,647 words printed in a proportionally spaced typeface.

2.    This brief is printed in a proportionally spaced, serif typeface using Garamond

14 point font in text and Garamond 12 point font in footnotes produced by Microsoft

Word software.

3.    Upon request, undersigned counsel will provide an electronic version of this brief

and/or a copy of the word printout to the Court.

4.    Undersigned counsel understands that a material misrepresentation in completing

this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),

may result in the Court's striking this brief and imposing sanctions against the person

who signed it.

                                                /s/ Melissa Martin
                                                ______________________________
                                                MELISSA MARTIN




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