Opinion issued March 14, 2019




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                             ————————————
                                NO. 01-17-00587-CR
                             ———————————
                         TERRANCE DAVIS, Appellant
                                           V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 351st District Court
                            Harris County, Texas
                        Trial Court Case No. 1482887



                           MEMORANDUM OPINION

      A jury convicted appellant of state-jail felony theft,1 found an enhancement

paragraph true, and assessed punishment at 12 years’ confinement. In four related


1
      See TEX. PENAL CODE § 31.03(e)(4)(a) (providing that theft is a state jail felony if
      “the value of the property stolen is $2,500 or more but less than $30,00.”
issues on appeal, appellant contends that (1) the trial court erred in allowing the

indictment to be amended after trial commenced, (2) the evidence was legally

insufficient, (3) the trial court erred by overruling appellant’s objections to the

charge, which created a fatal variance between the allegations of the indictment and

the proof offered at trial, and (4) the trial court erred by overruling appellant’s

request for a jury charge on a lesser-included offense.

                                 BACKGROUND

Factual Background

      Appellant was arrested after a “bank jugging” investigation. “Bank jugging”

involves suspects who park in front of a bank, watch customers leave the bank, and

then follow the customers in an attempt to commit a theft or robbery. 2 After an

undercover officer left a Wells Fargo Bank branch, appellant followed the officer to

an HEB grocery store parking lot, and, when she went into the grocery store,

appellant broke into her car with a screwdriver and grabbed her backpack, which

contained exactly $2500 in “bait money.” Appellant was not able to remove the

backpack from the car “all the way” because the officers had attached it to the car

seat with a cable that was “a few feet” long. Officers saw the backpack as appellant




2
      See Kitchen v. State, No. 01-17-00173-CR, 2018 WL 1630296, at *1 (Tex. App.—
      Houston [1st Dist.] Apr. 5, 2018, pet. ref’d) (mem. op., not designated for
      publication)
                                          2
pulled it through the window, but the cable prevented it from going much further

than the “sill” of the window. Appellant was immediately arrested.

Procedural Background

      The following pleadings are relevant to disposition of appellant’s issues on

appeal:

      The Complaint, dated 9/25/15, alleged that appellant

      [d]id then and there unlawfully appropriate, by acquiring and otherwise
      exercising control over property, namely, CASH MONEY, owned by
      ADAM BOCK, hereafter styled the Complainant, of the value of
      exactly two thousand five hundred dollars, with the intent to deprive
      the Complainant of the property.

      The Original Indictment, dated 11/19/15, alleged that appellant

      [d]id then and there unlawfully, appropriate, by acquiring and
      otherwise exercising control over property, namely, CASH MONEY,
      owned by JEANETTE PAYNE, hereafter styled the Complainant, of
      the value of over two thousand five hundred dollars and under thirty
      thousand dollars, with the intent to deprive the Complainant of the
      property.

      The First Amended Indictment, dated 5/12/17, alleged that appellant

      [d]id then and there unlawfully, appropriate, by acquiring and
      otherwise exercising control over property, namely, CASH MONEY
      owned by JEANETTE PAYNE, hereafter styled the Complainant of the
      value of over two thousand five hundred dollars and under thirty
      thousand dollars, with the intent to deprive the Complainant of the
      property.

      At the end of the presentation of evidence, appellant moved for a directed

verdict, alleging that the State had not proved that appellant stole over $2500 as

                                        3
pleaded in the First Amended Indictment. The State asked that it be permitted to

delete the word over from the First Amended Indictment. The trial court denied

appellant’s motion for directed verdict, but the First Amended Indictment was never

amended.

      The jury charge application, to which appellant timely and properly objected,

provided that appellant

      [d]id then and there unlawfully, appropriate by acquiring or otherwise
      exercising control over property, namely, a cash money, owned by
      Jeanette Payne, of the value of at least two thousand five hundred
      dollars and less than thirty thousand dollars, with the intent to deprive
      Jeanette Payne of that property.

      The jury found appellant guilty, and this appeal followed.

                       AMENDMENT OF INDICTMENT

      In issue one, appellant contends that the trial court erred by permitting the

State to amend the indictment to omit the word “over” before “two thousand five

hundred dollars” in its description of the property stolen. Appellant argues that, once

trial commences, an indictment may not be amended over a defendant’s objection.

See TEX. CODE CRIM. PROC. art. 28.10(b) (“A matter of form or substance in an

indictment or information may also be amended after the trial on the merits

commences if the defendant does not object.”). As a result, appellant contends that

the First Amended Indictment was the charging instrument at the time of trial and

that the sufficiency of the evidence should be measured against it.

                                          4
       The State responds that “the charging instrument was never altered to remove

the language alleging that appellant appropriated property of “over $2,500” and that

because “the indictment was not actually amended . . . appellant has not shown that

the trial court erred.”

       As such, both parties agree that the indictment was never amended and that

the charging instrument at the time of trial was the First Amended Indictment, which

still included the word “over” before “two thousand five hundred dollars” in its

description of the property stolen.

       Because the indictment was not amended, the trial court did not err.

Accordingly, we overrule issue one.

       SUFFICIENCY OF THE EVIDENCE/MATERIAL VARIANCE

       In issue two, appellant contends that the evidence was insufficient to prove

appellant’s guilt under the First Amended Indictment. Specifically, appellant argues

that the State failed to prove that appellant stole cash with “a value of over two

thousand five hundred dollars and under thirty thousand dollars[,]” as alleged in the

indictment. The State responds that there was no “material variance” between the

indictment and the proof.

Standard of Review and Applicable Law

       The Due Process Clause protects a person from conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime with which

                                         5
he is charged. U.S. CONST. amend. XIV; accord Byrd v. State, 336 S.W.3d 242, 246

(Tex. Crim. App. 2011). In reviewing the legal sufficiency of the evidence, we ask

whether “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);

accord Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the

evidence “in the light most favorable to the verdict.” Merritt v. State, 368 S.W.3d

516, 525 (Tex. Crim. App. 2012).

      In cases involving a sufficiency claim based on a variance between the

indictment and the evidence, we consider the materiality of the variance rather than

reviewing the evidence under the traditional sufficiency standards set forth in

Jackson. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002).

      Only a “material variance—one that prejudices a defendant’s substantial

rights—will render the evidence insufficient. Ramjattansingh v. State, 548 S.W.3d

540, 547 (Tex. Crim. App. 2018). This happens when the indictment, as written, (1)

fails to adequately inform the defendant of the charge against him or (2) subjects the

defendant to the risk of being prosecuted later for the same offense. Id. There are

three different categories of variance. Id.

             1. A statutory allegation that defines the offense, not subject to
                materiality analysis, or, if it is, is always material; the
                hypothetically correct jury charge will always include the
                statutory allegations in the indictment;



                                          6
             2. A non-statutory allegation that is descriptive of an element of
                the offense that defines or help define the allowable unit of
                prosecution; sometimes material; the hypothetically correct
                jury charge will sometimes include the non-statutory
                allegations in the indictment and sometimes not;

             3. A non-statutory allegation that has nothing to do with the
                allowable unit of prosecution; never material, the
                hypothetically correct jury charge will never include the non-
                statutory allegations in the indictment.

Id. “The bottom line is that, in a sufficiency review, we tolerate variances as long

as they are not so great that the proof at trial ‘shows an entirely different offense’

than what was alleged in the charging instrument.” Id. (quoting Johnson v. State,

364 S.W.3d 292, 295 (Tex. Crim. App. 2012)).

Analysis

      Appellant contends that the variance in this case falls into the first category,

i.e., a variance that is not subject to a materiality analysis. Specifically, appellant

argues that, because the State proved that appellant stole exactly $2500.00, its proof

did not satisfy the “jurisdictional requirement” of the State’s pleading of “over”

$2500. See Sowders v. State, 693 S.W.3d 448, 450 (Tex. Crim. App. 1985) (“The

State must prove at trial that the amount of money stolen satisfies the jurisdictional

requirements of the State’s pleading.”). The State responds that the “jurisdictional

requirements of the State’s pleading” are only those necessary to prove the charged




                                          7
offense, a state jail felony theft. We agree with the State and case law dating back

to at least 1924 supports the State’s position.3

      In Houston v. State, 265 S.W. 585 (Tex. Crim. App. 1924), the indictment

alleged that the defendant stole cotton valued at $131.41, but the proof showed that

its value was only $118. Id. at 588. The defendant argued that the allegation in the

indictment did not correspond to the proof presented at trial.             Id. The court

disagreed, stating, “An allegation as to the value is not held descriptive further than

as it affects the question as to whether the offense is a felony or a misdemeanor. If

the proof showed beyond a reasonable doubt that the property alleged to have been

taken was of the value of more than $50 [the jurisdictional limit for felony theft at

the time], this is all that is necessary.” Id. (citations omitted).

      In Bergman v. State, the indictment alleged that appellant stole “fifty-two

dollars and ninety-six cents in money.” 370 S.W.2d 895, 896 (Tex. Crim. App.

1963). However, the proof at trial showed that appellant wrote a check for $52.96,

with which he paid for $2.96 in groceries, receiving $50 back in cash. Id. The court

held that, even though appellant only stole $50, not the $52.96 alleged in the



3
      Indeed, case law going back to 1899 supports the same. In Diaz v. State, 53 S.W.
      632, 633 (Tex. Crim. App. 1899), the indictment alleged alteration of goats valued
      at $65, but the statute under which the defendant was charged only required that the
      goats be valued at $20. The court found that the trial court was not required to charge
      the jury that it must find that the goats were valued at $65, even though that was the
      amount alleged in the indictment. Id.
                                             8
indictment, there was no material variance. See id. at 896–97. “Where the value of

property alleged to have been stolen does not determine whether the offense is a

felony or a misdemeanor, nor control the punishment applicable to the theft, the

allegation as to its value is not descriptive of the offense and need not be proven.”

Id. at 896 (quoting Malazzo v. State, 308 S.W.2d 29, 31 (Tex. Crim. App. 1957)).

Because felony theft at the time required proof of “fifty dollars or over,” “[t]he fact

that the money was alleged [in the indictment] to have been worth $52.96, and

proven to have been worth $50, was immaterial.” Id. at 897.

      In Sowders v. State, 693 S.W.2d 448, 449 (Tex. Crim. App. 1985), the

defendant was indicted for theft of property from Marilyn Ejem, “namely: SEVEN

THOUSAND THREE HUNDRED ELEVEN AND 6/100 DOLLARS ($7,311.06),

in United States Currency, all of the value of two hundred dollars or more but less

than ten thousand dollars[.]” On appeal, the defendant argued that the State was

required to prove that all $7,311.06 belonged to Marilyn Ejem. Id. at 450. The Court

of Criminal Appeals disagreed, and as an example, explained: “[I]f a defendant is

charged with third-degree felony theft, the State need only prove that the value of

the property stolen within the [range of value for a third degree felony].” Id.

      In this case, appellant is charged with state jail felony theft. An individual

commits the offense of state jail felony theft if he unlawfully appropriates property

with the intent to deprive the owner thereof, and the value of the property stolen is

                                          9
“$2,500 or more but less than $30,000[.] TEX. PENAL CODE ANN. § 31.03(a),

(e)(4)(A). Under the reasoning of the cases discussed above, the fact that the State

proved that exactly $2,500 was stolen was sufficient. If appellant stole exactly

$2,500 dollars, or even just one penny more, both of those amounts would fall within

the range for a state jail felony.

       In theft prosecutions, the State’s allegation of the value of the property
       is not ‘descriptive’ within the meaning of the traditional variance rule.
       Thus, the State need only prove a value sufficient to establish the crime
       charged. The precise value alleged need not be proved. A variance
       between the value alleged and that proved will not preclude conviction.

43A TEX. PRAC. SERIES: Criminal Practice and Procedure § 52:43 (3d ed.).

       Because the indictment alleged a state jail felony and the evidence at trial

proved a state jail felony, there was no material variance between the indictment and

the proof. Accordingly, we overrule issue two.

                                     JURY CHARGE

       In issue three, appellant contends the trial court erred by refusing to include

the word “over” before “two thousand five hundred dollars” in its description of the

property stolen in the application paragraph of the jury charge.4               Appellant’s




4
       The application paragraph of the jury charge asked the jury to decide whether
appellant:

       [d]id then and there unlawfully, appropriate by acquiring or otherwise
       exercising control over property, namely, a cash money, owned by Jeanette
       Payne, of the value of at least two thousand five hundred dollars and less than
                                             10
argument is essentially the same as that in the previous sufficiency review: that the

State alleged an amount over $2,500, so the jury should have been instructed to

determine whether the State proved an amount over $2,500.

      However, we have already held that a hypothetically correct jury charge,

against which the evidence is considered, need not include an immaterial variance,

and the inclusion of an amount over that required to show a state jail felony is

immaterial. In this case, we have not only a hypothetically correct jury charge, the

jury charge given was actually correct.

      Article 36.14 of the Code of Criminal Procedure requires that a trial court

provide a jury charge “distinctly setting forth the law applicable to the case.” TEX.

CODE CRIM. PROC. Art. 36.14. A charge sets forth the law applicable to the case by

tracking the language of the relevant statute. See Casey v. State, 215 S.W.3d 870,

887–88 (Tex. Crim. App. 2007); Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim.

App. 1996) (“Following the law as it is set out by the Texas Legislature will not be

deemed error on the part of a trial judge.”). The application paragraph in this case

tracks the language of section 31.03(e)(4)(a) of the Penal Code, and the trial court

did not err by refusing to add the requested language.

      We overrule issue three.


      thirty thousand dollars, with the intent to deprive Jeanette Payne of that
      property.

                                          11
                          LESSER-INCLUDED OFFENSE

       In his fourth issue, appellant contends the trial court erred by overruling his

request for a jury charge on the lesser-included offense of attempted theft. At trial,

appellant argued in support of the requested charge as follows:

       And we would also request an instruction on the lesser of attempted
       theft. I think the way this sting operation was engineered, there was no
       way [appellant] was ever going to get away with this money and, in
       fact, didn’t get away with it; and a rational juror might have a
       reasonable doubt as to whether or not he actually did acquire or
       otherwise exercise control over the property because, really, there is no
       definition of what “acquire” and “exercising control” over property is,
       other than that. A rational juror might very well believe that in this
       situation where there was no way he was ever going to get more than 3
       feet away from that car with this money, might not constitute acquiring
       or otherwise exercising control; so we would ask for a less on attempted
       theft.

       The trial court denied his requested instruction on the lesser-included offense

of attempted theft.

Standard of Review and Applicable Law

       We follow a two-step test for determining whether a trial court is required to

give a requested instruction on a lesser-included offense. See Bullock v. State, 509

S.W.3d 921, 924 (Tex. Crim. App. 2016).

       The first step is to determine whether the requested instruction pertains to an

offense that is a lesser-included offense of the charged offense, which is a matter of

law. Id. Under this first step of the test, an offense is a lesser-included offense if it is

within the proof necessary to establish the offense charged. Id.; Sweed v. State, 351
                                            12
S.W.3d 63, 68 (Tex. Crim. App. 2011); see also TEX. CODE CRIM. PROC. art. 37.09.

Here, the first step is established because, as a matter of law, an attempt to commit

the charged offense, attempted theft, is a lesser-included offense of the charged

offense of theft. Bullock, 509 S.W.3d at 924; TEX. CODE CRIM. PROC. art. 37.09(4).

      The second step in the analysis asks whether there is evidence in the record

that supports giving the instruction to the jury. Bullock, 509 S.W.3d at 924–25;

Sweed, 351 S.W.3d at 68. Under the second step, a defendant is entitled to an

instruction on a lesser-included offense when there is some evidence in the record

that would permit a jury to rationally find that, if the defendant is guilty, he is guilty

only of the lesser-included offense. Bullock, 509 S.W.3d at 925; Rice v. State, 333

S.W.3d 140, 145 (Tex. Crim. App. 2011) (citations omitted). The evidence must

establish that the lesser-included offense is a valid, rational alternative to the charged

offense. Bullock, 509 S.W.3d at 925.

      The second step requires examining all the evidence admitted at trial, not just

the evidence presented by the defendant. Bullock, 509 S.W.3d at 925; Goad v. State,

354 S.W.3d 443, 446 (Tex. Crim. App. 2011). We consider the entire record and a

statement made by the defendant cannot be plucked out of the record and examined

in a vacuum. Bullock, 509 S.W.3d at 925; Enriquez v. State, 21 S.W.3d 277, 278

(Tex. Crim. App. 2000). Anything more than a scintilla of evidence is adequate to

entitle a defendant to a lesser charge. Bullock, 509 S.W.3d at 925; Sweed, 351

                                           13
S.W.3d at 68. Although this threshold showing is low, it is not enough that the jury

may disbelieve crucial evidence pertaining to the greater offense, but rather there

must be some evidence directly germane to the lesser-included offense for the finder

of fact to consider before an instruction on a lesser-included offense is warranted.

Bullock, 509 S.W.3d at 925. “However, we may not consider the credibility of the

evidence and whether it conflicts with other evidence or is controverted.” Goad, 354

S.W.3d at 446–47. “Accordingly, . . . the standard may be satisfied if some evidence

refutes or negates other evidence establishing the greater offense or if the evidence

presented is subject to different interpretations.” Sweed, 351 S.W.3d at 68.

      “In considering whether a lesser offense is a valid, rational alternative to the

charged offense, we must compare the statutory requirements between the greater

offense—here, theft—and the lesser offense—here, attempted theft—to determine

whether evidence exists to support a conviction for attempted theft but not theft.”

Bullock, 509 S.W.3d at 925. A person commits the offense of theft if he unlawfully

appropriates property with intent to deprive the owner of the property. TEX. PENAL

CODE § 31.03(a). “Appropriate” means to acquire or otherwise exercise control over

property other than real property. Id. § 31.01(4)(B). Criminal attempt occurs when a

person, with specific intent to commit an offense, does an act amounting to more

than mere preparation that tends but fails to effect the commission of the offense

intended. Bullock, 509 S.W.3d at 925; TEX. PENAL CODE §15.01(a). To find

                                         14
appellant guilty only of attempted theft, a jury would be required to determine that

appellant intended to steal the backpack, he did an act amounting to more than mere

preparation, but he failed to effect the completed theft—i.e., he failed to unlawfully

appropriate the backpack by failing to acquire it or otherwise exercise control over

it. See Bullock, 509 S.W.3d at 925. It is not necessary that the property be taken off

the premises where the theft occurs; it is instead only essential that the evidence

show an exercise of control over the property, coupled with an intent to deprive the

owner of the property. Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. [panel

op.] 1981). In determining whether an appropriation has occurred, we consider

whether the accused exercised unauthorized control over the property. See Freeman

v. State, 707 S.W.2d 597, 605 (Tex. Crim. App. 1986).

Analysis

      These facts provide no evidence that appellant tried but failed to exercise

control over the backpack. The undisputed evidence is that he grabbed the backpack

and pulled it through the window with the requisite criminal intent. Any “exercise

[of] control over property other than real property” is an appropriation regardless of

the duration of that control. See Baker v. State, 511 S.W.2d 272, 272 (Tex. Crim.

App. 1974) (“[R]emoval of the property from the premises is not necessary for

commission of the offense of theft. Removal of the object from its customary

location is sufficient to show such reduction of control or manual possession as is

                                         15
required.”); see Willis-Webb v. State, No. 01-15-00727-CR, 2016 WL 6277423, at

*3–4 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, pet. ref’d) (mem. op., not

designated for publication) (holding evidence showed unlawful appropriation even

though security guards caused defendant to abandon merchandise before leaving

store); 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 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.) (not designated for publication) (“[T]o have

                                          16
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) (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”).

      Here, appellant exercised control over the backpack when he removed it from

its location on the seat of the car and pulled it through the window. We therefore

conclude that the trial court properly overrule appellant’s request for the lesser-

included offense of attempted theft.

      Accordingly, we overrule issue four.

                                       CONCLUSION

             We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice


Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).
                                          17
