                                   NUMBER 13-09-00441-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


ADRON SLOUGH,                                                                                 Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                            Appellee.


                         On appeal from the 94th District Court
                              of Nueces County, Texas.


                                MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Benavides and Vela
               Memorandum Opinion by Chief Justice Valdez

        Appellant, Adron Slough, was charged by indictment with the offense of robbery, a

second-degree felony.1 See TEX . PENAL CODE ANN . § 29.02 (Vernon 2003). After a bench

trial, the trial court granted a directed verdict as to the robbery charge, yet it convicted

Slough of the lesser-included offense of theft from a person. See id. § 31.03 (Vernon
        1
         The indictm ent also included an enhancem ent paragraph stating that Slough had been previously
convicted of felony burglary of a habitation on May 12, 2003. See T EX . P EN AL C OD E A N N . § 30.02 (Vernon
2003). This conviction enhanced the robbery charge to a first-degree felony. See id. § 12.42(b) (Vernon
Supp. 2009).
Supp. 2009).         The trial court subsequently sentenced Slough to eighteen months’

confinement in a state jail and ordered him to pay $315 in court costs. By two issues,

Slough argues that: (1) the evidence supporting his conviction is legally and factually

insufficient; and (2) theft from a person is not a lesser-included offense of robbery. We

vacate the judgment of the trial court and remand with instructions to enter a judgment of

acquittal.

                                              I. BACKGROUND

       The indictment provided that, on February 21, 2009, Slough “while in the course of

committing theft of property and with intent to obtain or maintain control of said property,

intentionally or knowingly or recklessly cause[d] bodily injury to Raul Martinez[2] by striking

Raul Martinez with the defendant’s elbow.” The underlying offense pertains to an incident

occurring at the Times Market convenience store located at the intersection of Ayers and

Arlington in Corpus Christi, Texas.

       At trial, Vasquez testified that: (1) he had worked as a security guard at the Times

Market for seven years; (2) he does not work behind the register; and (3) he stands in the

doorway “just looking out for people that come in and out.” On the day of the incident,

Vasquez saw Slough come into the convenience store and take two eighteen-packs of Bud

Light beer. As he observed Slough leaving the store, Vasquez told Slough to stop;

however, Slough ran out of the store. Vasquez followed Slough out of the store. Slough

ran towards a dark-colored car parked at the corner of the parking lot and immediately got

into the car. Vasquez reached the car at approximately the same time as Slough and tried

to take the beer away from Slough. Vasquez was able to take one of the packs of beer

away from Slough; however, the car left the parking lot with Slough in possession of one

       2
           At trial, it was established that Raul Martinez’s real nam e is Raul Martinez Vasquez.
                                                       2
of the packs of beer. As the car pulled out of the parking lot, Vasquez was struck by the

car door and fell to the ground. Vasquez testified that Slough never touched him, but the

car door and the subsequent fall caused minor injuries to Vasquez’s arm and hand.

        Gilbert Villarreal, a trooper with the Department of Public Safety, Highway Patrol

Division, testified that he was on patrol in the area at the time the incident occurred.

Shortly after the incident, Trooper Villarreal pulled over the driver of a car for failure to wear

a seatbelt. During the stop, Trooper Villarreal received information about the alleged

robbery at the convenience store, which included the description of the car. The car he

had just pulled over matched the description of the car at the convenience store. Corpus

Christi police arrived at the scene of the traffic stop and arrested Slough.

        After the witnesses from both sides concluded their testimony, the parties stipulated

that the value of the allegedly stolen beer was less than $50. The trial court subsequently

granted a directed verdict in favor of the defense as to the robbery offense; however,

Slough was convicted of the lesser-included offense of theft from a person. See id. During

the punishment phase, Slough admitted that he stole the beer, but he noted that he was

under the influence of medication used to treat his depression. The trial court sentenced

Slough to eighteen months’ confinement in a state jail. This appeal ensued.3

                                            II. APPLICABLE LAW

        In conducting a legal sufficiency review, we consider the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Sanders v. State, 119 S.W.3d
        3
           On May 19, 2010, Slough and the State filed a “Joint Motion for Expedited Disposition and Release
on Personal Bond,” asserting that Slough filed an appellate brief with this Court arguing that the evidence
supporting his conviction is legally and factually insufficient and that the State agreed. The parties also stated
that, as of May 19, 2010, Slough had served fifteen m onths of his eighteen-m onth sentence and that, without
expedited treatm ent of this case, he “will likely receive no effective relief from the erroneous sentence.” After
reviewing the record and the contents of the m otion, we G RANT the parties’ joint m otion for expedited
disposition and release on personal bond.
                                                        3
818, 820 (Tex. Crim. App. 2003). We must give deference to “the responsibility of the trier

of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We

are not required to determine whether we believe the evidence at trial established guilt

beyond a reasonable doubt; rather, when faced with conflicting evidence, we must

presume that the trier of fact resolved any such conflict in favor of the prosecution, and we

must defer to that resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

          In conducting a factual sufficiency review, we consider the evidence in a neutral

light. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). The verdict will

be set aside only if (1) it is so contrary to the overwhelming weight of the evidence as to

be clearly wrong and manifestly unjust, or (2) it is against the great weight and

preponderance of the evidence. Id. at 415 (citing Johnson v. State, 23 S.W.3d 1, 10 (Tex.

Crim. App. 2000)).

          Both legal and factual sufficiency are measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet.

ref’d).

          Theft occurs when a person unlawfully appropriates property with the intent to

permanently deprive the owner of the property. TEX . PENAL CODE ANN . § 31.03(a). Theft

becomes a third-degree felony if the property is stolen from the person of another. Id. §

31.03(e)(4)(B); see Farrell v. State, 837 S.W.2d 395, 398 (Tex. App.–Dallas 1992, pet.

ref’d). To sustain a conviction for theft from a person, the evidence must show that the



                                              4
property was taken from the physical body of the person or from his grasp or immediate

possession. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); see Farrell, 837

S.W.2d at 398 (citing Mack v. State, 465 S.W.2d 941, 942 (Tex. Crim. App. 1971); Alfred

v. State, 659 S.W.2d 97, 98 (Tex. App.–Houston [14th Dist.] 1983, no pet.) (holding that

theft of a purse from a shopping cart was theft from the person where the complainant’s

hand was on the cart)); see also Mullins v. State, No. 07-03-0332-CR, 2005 Tex. App.

LEXIS 6553, at **7-9 (Tex. App.–Amarillo Aug. 16, 2005, no pet.) (mem. op., not

designated for publication) (affirming a conviction for theft from a person because the

evidence showed that a purse was stolen while it was within the grasp of the victim and the

risk of injury incident to the taking was established when someone, who saw the taking of

the purse, was injured after pursuing the defendant); Cotton v. State, Nos. 05-97-01964-

CR & 05-97-01965-CR, 1999 Tex. App. LEXIS 2419, at **13-14 (Tex. App.–Dallas Apr. 1,

1999, no pet.) (not designated for publication) (affirming a conviction for theft from a person

when the defendant took money from an envelope on the seat of a truck, which was in

close proximity to the victim).

       “It is the risk of fright or injury that distinguishes theft from a person from ordinary

theft.” Farrell, 837 S.W.2d at 398 (citing Earls, 707 S.W.2d at 86). “Theft from a person

involves a risk of fright or injury because a struggle might ensue or a defendant might injure

a person in order to take the property.” Id. (citing Earls, 707 S.W.2d at 86).

                                        III. ANALYSIS

       In his first issue, Slough argues that the evidence supporting his conviction for theft

from a person is legally and factually insufficient. The State concedes that the evidence

supporting Slough’s conviction is insufficient, noting that Slough’s “struggle” with Vasquez



                                              5
in the parking lot of the store “did not convert the theft into a theft from the person of

another” because the theft had already been completed. We agree.

       The court of criminal appeals has held that when all of the elements of a theft have

occurred, then the theft is complete and does not continue; thus “asportation—the act of

carrying away or removing property—is not an element of statutory theft.” Hawkins v.

State, 214 S.W.3d 668, 670 (Tex. App.–Waco 2007, no pet.); see Barnes v. State, 824

S.W.2d 560, 562 (Tex. Crim. App. 1991) (“Generally, when each of the elements of a crime

have occurred, the crime is complete.”), overruled on other grounds by Proctor v. State,

967 S.W.2d 840, 842 (Tex. Crim. App. 1998). At the time Slough took the beer with the

intent to deprive the owner of the property, he was inside the store and the beer was not

in the immediate possession of any person; therefore, the theft was completed at this time.

See Barnes, 824 S.W.2d at 562; Earls, 707 S.W.2d at 85; Mack, 465 S.W.2d at 942; see

also Farrell, 837 S.W.2d at 398; Alfred, 659 S.W.2d at 98. In addition, Vasquez testified

that Slough never touched him, and Vasquez failed to note that he was frightened of injury

when he pursued Slough in the convenience store’s parking lot, a point in time when the

theft had already been completed. See Earls, 707 S.W.2d at 86; see also Farrell, 837

S.W.2d at 398.

       Based on the foregoing, we cannot say that Slough committed the offense of theft

from a person. See Earls, 707 S.W.2d at 85; see also Farrell, 837 S.W.2d at 398.

Therefore, we agree that, after viewing the evidence under the appropriate prisms, the

evidence is legally and factually insufficient. See Watson, 204 S.W.3d at 414-15; see also

Sanders, 119 S.W.3d at 820. Accordingly, we sustain Slough’s first issue.

                                     IV. CONCLUSION



                                            6
       Because we have sustained Slough’s first issue, we need not address his second

issue. See TEX . R. APP. P. 47.1. Furthermore, because the State concedes and we agree

that the evidence supporting Slough’s conviction is insufficient, we vacate the judgment of

the trial court and remand with instructions to render a judgment of acquittal as to the

charge of theft from a person.
                                                 ________________________
                                                 ROGELIO VALDEZ
                                                 Chief Justice

Dissenting Memorandum Opinion
by Justice Rose Vela.

Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
3rd day of June, 2010.




                                            7
