                                                                                          ACCEPTED
                                                                                     06-14-00173-CR
                                                                           SIXTH COURT OF APPEALS
                                                                                TEXARKANA, TEXAS
                                                                                2/11/2015 4:04:12 PM
                                                                                     DEBBIE AUTREY
                                                                                              CLERK

                         NO. 06 – 14 – 00173 – CR
___ ___________________________________________________________________
                                                            FILED IN
                                                     6th COURT OF APPEALS
             IN THE SIXTH DISTRICT COURT OF APPEALS    TEXARKANA, TEXAS
                         TEXARKANA, TEXAS            2/11/2015 4:04:12 PM
______________________________________________________________________
                                                         DEBBIE AUTREY
                                                             Clerk
                          ROCHELLE SCHELLING,
                                 Appellant,
                                    v.
                           THE STATE OF TEXAS,
                                 Appellee


          On appeal from the 124th District Court, Gregg County, Texas
                        Trial Court Case No. 43049-B


                     BRIEF OF THE STATE OF TEXAS
 ____________________________________________________________________

                                    CARL DORROUGH
                                    GREGG COUNTY
                                    CRIMINAL DISTRICT ATTORNEY

                                    Zan Colson Brown
                                    Texas Bar No. 03205900
                                    Assistant Criminal District Attorney
                                    Gregg County, Texas
                                    101 East Methvin St., Suite 333
                                    Longview, Texas 75601
                                    Telephone: (903) 236–8440
                                    Facsimile: (903) 236–3701
                                    Email: zan.brown@co.gregg.tx.us

 ORAL ARGUMENT NOT REQUESTED
                                   TABLE OF CONTENTS

    INDEX OF AUTHORITIES ...................................................................2

    STATEMENT OF FACTS ......................................................................3
    SUMMARY OF THE ARGUMENT ......................................................6

    ARGUMENT AND AUTHORITIES .....................................................7
              1. The sole issue is whether the state’s evidence was
      sufficient to prove theft if they prove that a person pushed a
      basket full of unreceipted merchandise past all points of
      sale and past theft detectors, but was caught before exiting
      the doors of the store. ............................................................................7
                  a. Standard of Review. ..............................................................7
                b. Evidence is sufficient to prove that Schelling
        appropriated the property, intending to deprive the owner
        of the property. ......................................................................................9
               c. The statute does not require removal of the
        property from the premises. ..................................................................9
               d. Case law is well settled that removing property
        from premises is not an element of the theft statute. .............................9
               e. Application: Schilling, with merchandise in a
        cart, pushed the cart past the cash registers and theft
        detectors and toward the doorway.                            Evidence of
        appropriation is sufficient. ..................................................................12
                  f. Evidence is sufficient to prove lack of consent. ..................12

    CONCLUSION AND PRAYER............................................................13

    CERTIFICATE OF SERVICE .............................................................14

    CERTIFICATE OF COMPLIANCE ...................................................14




1
                                     INDEX OF AUTHORITIES


         Federal Cases
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ...........7

         State Cases
Barnes v. State, 513 S.W.2d 850, 851 (Tex. Crim. App. 1974) ..............................11
Castillo v. State, 739 S.W.2d 280 (Tex. Crim. App. 1987) .......................................8
Coleman v. State, 804 S.W.2d 563, 564 (Tex. App. Houston 14th Dist. 1991) ........8
Harris v. State, 29 Tex. Ct. App. 101, 14 S.W. 390, 391 (1890) ............................11
Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App. Waco 2007) ...........................11
Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1981) .......................................9, 10
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ...........................................7
Jarrott v. State, 108 Tex. Crim. 427, 1 S.W.2d 619 (Tex. Crim. App. 1927) .........11
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ..........................................8

         State Statutes
Tex. Pen. Code Ann. § 31.03 (Vernon) .....................................................................9
Tex. Pen. Code Ann. § 31.03(a)...............................................................................11
Tex. Penal Code § 31.01 (4) (2011)....................................................................9, 10
Tex. Penal Code § 31.03 ............................................................................................9
Tex. Penal Code §30.02 .............................................................................................9

         State Rules
Appellate Procedure, Rule 9 (2012).........................................................................16
         3 RR 30.




         2
                           STATEMENT OF FACTS

      Rochelle Schelling was indicted for the offense of theft enhanced by

two prior convictions for theft.) CR 4. A second paragraph was abandoned

at trial. CR 11. The date of the primary offense was July 31, 2013, and the

date of the indictment was October 10, 2013.

            Schelling was stopped and confronted on video by store

personnel at Wal-Mart on Estes Parkway in Longview, Gregg County,

Texas, pushing a shopping cart containing unpurchased and unbagged

merchandise worth $526.19. SX 2,3,4; 3 RR 16-17.

      Destinee Jeffery, a customer service supervisor, testified she saw that

merchandise was in the buggy, but not in bags, so she grabbed the buggy,

confronted Schilling and asked for a receipt. SX 3, 3 RR 14. Unable to

produce one, Schelling said she would have to go to the car to get money,

but never returned with any money. 3 RR 16. Jeffery followed Schilling to

the parking lot while she was calling police. SX 3; 3 RR 22. Jeffery watched

her walk to a car, but the passengers would not let her in, and told Jeffery

they didn’t know that she was doing that. 3 RR 16. Then Schilling walked

toward the gas station and asked someone if she could get in the car, and she

did. 3 RR 16. Jeffery told the police which vehicle she got in, and which

      3
direction they were going, and the police eventually caught her and brought

her back. 3 RR 16. Jeffery and Kevin Clay, WalMart’s asset protection

manager, met with her and the police in the Asset Protection room, where

Schilling admitted committing the crime, and Clay and Jeffery scanned the

items from the buggy, gave the police the total and then the police took her

to jail. 3 RR18.

      WalMart’s surveillance system recorded Schilling attempting to leave

the store without paying for the merchandise. 3 RR 19.

      Jeffery described the entry/exit way, an area somewhat separated from

the main store where the confrontation occurred as the video was displayed:

       Q. . . . Ms. Jeffery, can you describe where we're at in the store; where
the cash register's at, where's the exit door, and what those blue rails are?
       A. The blue rails are the point of sale. They're -- the registers are in
the back, and in the front of her are the exit doors.
       Q. Okay. And if you can just use the laser pointer to point on that
frame. Behind her are all the cash registers, I think is what you're trying to
say, right?
       A. Yes.

      3 RR 21.

      Q. So at this point she's passed all registers, she's passed the detectors,
and she's headed toward the exit doors?
      A. Yes, sir.
      Q. And she had a buggy full of items that she had no receipt for and
were not bagged?

      3 RR 22.
      4
      On cross-examination, Jeffery confirmed that Schilling never exited

the doors of the store with the merchandise. 3 RR 28. None of the

merchandize had been damaged or altered. 3 RR 28. No tags had been

removed. 3 RR 30.

      On re-direct, the prosecutor ascertained with Ms. Jeffery that nobody

from WalMart ever gave Schilling permission to take the items. 3 RR 29.

Schilling never came back to pay like she said she would. 3 RR 30.

      When the State gave a closing argument, he briefly summarized the

evidence and concluded “Theft is theft.” 3 RR 41.

      Defense counsel’s argument was that the appropriation of the property

was never completed, because WalMart employees prevented it. 3 RR 42.

He further argued that his client never appropriated, by acquiring or

otherwise exercising control over property. 3 RR 43.

      The judge held that one does not have to exit the store to commit

theft. The State’s burden was to prove that the burden had the intent and

appropriated the property without the owner’s effective consent. The trial

court ruled that the State had proved all the required elements of theft of

property under $1,500, after Schilling had stipulated to two prior

      5
convictions; Schilling was therefore guilty of theft habitual, a state jail

felony. 3 RR 47-48. .

      This appeal ensued.



                        SUMMARY OF THE ARGUMENT



      The evidence is sufficient to support the conviction for theft.

Although Schelling never left the store with the merchandise, video evidence

showed that she pushed the buggy containing merchandise past the cash

registers and theft detectors and attempted to avoid the receipt checker’s

notice by veering behind her back while she was talking to another

customer. The conviction should be affirmed.




      6
                      ARGUMENT AND AUTHORITIES



     1.    The sole issue is whether the state’s evidence was sufficient
to prove theft if they prove that a person pushed a basket full of
unreceipted merchandise past all points of sale and past theft detectors,
but was caught before exiting the doors of the store.


      Appellant argues that the evidence is insufficient in that she never left

the store with the merchandise.

      a.     Standard of Review.

      The standard of review for a challenge to sufficiency of evidence is

set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d

560 (1979). A reviewing court is required to defer to a fact-finder’s

credibility and weight determinations. Brooks v. State, No. PD-0210-09,

2010 Tex. Crim. App., LEXIS 1240, (Tex. Crim. App. October 6, 2010).

      On review for sufficiency of evidence, Appellate courts cannot

reverse a conviction on legal grounds unless no rational factfinder could find

the defendant guilty beyond a reasonable doubt. Jackson, 443 U.S., 318-19.

The evidence is examined in a light most favorable to the verdict. This

standard is applied to both direct and circumstantial evidence cases.

“Circumstantial evidence is as probative as direct evidence in establishing

      7
the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt. On appeal, the same standard of review is used for both

circumstantial and direct evidence cases.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007) (internal citations omitted.) It is sufficient if the

cumulative force of all incriminating circumstances would permit a rational

trier of fact to find, beyond a reasonable doubt, that appellant had entered the

residence. Coleman v. State, 804 S.W.2d 563, 564 (Tex. App.—Houston

[14th Dist.] 1991, no pet.) (citing Castillo v. State, 739 S.W.2d 280, 288

(Tex. Crim. App. 1987)).

              Legal sufficiency of the evidence is 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).

        A hypothetically correct jury charge "sets out the law, is authorized by

the indictment, does not unnecessarily increase the State's burden of proof or

unnecessarily restrict the State's theories of liability, and adequately

describes the particular offense for which the defendant was tried." Malik, at

n. 2.




        8
      b.    Evidence is sufficient to prove that Schelling appropriated
the property, intending to deprive the owner of the property.


      Appellant challenges the sufficiency of the evidence to support the

element of appropriation, because she did not leave the store with the

property.



      c.   The statute does not require removal of the property from
the premises.


      The legislature has made it an offense to unlawfully appropriate

property with intent to deprive the owner of property; appropriation is

unlawful if it is without the owner’s consent. Tex. Pen. Code Ann. § 31.03

(Vernon) (a) and (b) (2013). “Appropriate” means “to acquire or otherwise

exercise control over property other than real property.” Tex. Penal Code §

31.01 (4) (2013Tex. Pen. Code Ann. § 31.01(4) (Vernon 2014).



     d.     Case law is well settled that removing property from
premises is not an element of the theft statute.


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

istinguishes Hill v. State, which was cited by the judge for the proposition

      9
that she did not have to remove the property from the store to be convicted

of theft. Hill v. State, 633 S.W.2d 520, (Tex. Crim. App. 1981). In Hill, the

thief concealed a stolen gun under his shirt, and there is no evidence that

Schilling attempted to conceal any of the property under her clothing or in

her purse.

      However, the court was relying on wording from Hill, which he

paraphrased as follows: what is necessary is -- to prove for appropriation is

that the defendant exercised control over the property, coupled with the

intent to deprive the owner of the property without the owner's effective

consent. 3 RR 47.

      In an unpublished opinion from Houston’s First District Court of

Appeals, a conviction was upheld on these facts: Slaughter was caught by a

store alarm that detected anti-theft devices in his bag as he attempted to

leave the store with merchandise from the store in a garbage bag. Slaughter

v. State, 1994 Tex. App. LEXIS 343 (Tex. App. Houston 1st Dist. Feb. 17,

1994 memorandum opinion, not designated for publication). The manager

told him to stop and return the merchandise. Id. He took a tee shirt from his

bag and threw it down on the counter and turned to leave again. Id. The




      10
manager blocked his exit and Slaughter dropped his entire bag and left. Id.

He was caught before leaving the mall and tried and convicted. Id.

      It is well settled that asportation--the act of carrying away or

removing property--is not an element of statutory theft. See Tex. Pen. Code

Ann. § 31.03(a) and (b) (2011); Hawkins v. State, 214 S.W.3d 668, 670

(Tex. App.—Waco 2007, no pet.). A defendant who took possession and

control of car by entering it and starting the motor, with his hands on

steering wheel with obvious intent to drive it away, was guilty of felony

theft of car although he was interrupted before he had time to abscond with

it. Barnes v. State, 513 S.W.2d 850, 851 (Tex. Crim. App. 1974). In 1927,

the court held that one fraudulently appropriating another's property may be

convicted of theft, though not removing it from owner's premises. Jarrott v.

State, 108 Tex. Crim. 427, 1 S.W.2d 619, 621 (Tex. Crim. App. 1927). As

long ago as 1890, an appellate court found that momentary taking of money

from drawer, though immediately returned to owner when caught, was

sufficient to constitute larceny. Harris v. State, 14 S.W. 390, 391 (Tex. App.

1890, no pet.).




      11
      e.   Application: Schilling, with merchandise in a cart, pushed
the cart past the cash registers and theft detectors and toward the
doorway. Evidence of appropriation is sufficient.


      The State was not required to prove that Schilling left the store with

the items. The proof that she pushed a buggy containing unreceipted items

past the cash register area past the theft detectors, and attempted to avoid

producing a receipt is sufficient evidence that she appropriated or exercised

control over the merchandise with the intent to leave without paying for the

merchandise.    Her claim that the State did not prove theft because the store

personnel caught the thief before she exited the store is meritless and should

be denied.

      f.     Evidence is sufficient to prove lack of consent.


      The testimony of Destinee Jeffrey included a statement that nobody in

Wal-Mart, not even the asset-protection manager, had given Schilling

permission to remove the items. No objection was lodged to this testimony.

      Q. Ms. Jeffery, did -- did you give Ms. Schelling permission to take
      those items without paying for them?
      A. I did not.
      Q. Did anyone from Wal-Mart give her permission to take those
      items; do you know of anyone from Wal-Mart?
      A. No.
      Q. Kevin Clay didn't give her permission?
      A. Kevin Clay did not.
      12
                         CONCLUSION AND PRAYER

      The evidence is sufficient to support Schelling’s conviction for theft.

She appropriated the merchandise by pushing the buggy containing it past

the cash register area and past the theft-detectors and attempting to avoid the

woman checking for receipts. The State is not required to prove she left the

premises with the merchandise. The State may—and did-- prove lack of

owner’s consent and intent to deprive.    The State prays that this Court will

reject Appellant’s issue and affirm the Trial Court’s judgment and sentence.



                                              Respectfully Submitted,
                                              CARL L. DORROUGH
                                              Criminal District Attorney
                                              Gregg County, Texas

                                              /S/Zan Colson Brown
                                              Zan Colson Brown
                                              Texas Bar No. 03205900
                                              Assistant Criminal District Attorney
                                              101 East Methvin St., Suite 333
                                              Longview, TX 75601
                                              Telephone: (903) 236–8440
                                              Facsimile: (903) 236–3701
                                              Email: zan.brown@co.gregg.tx.us




      13
                           CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing has been
forwarded to all counsel of record by electronic filing service to

      Mr. Clement Dunn
      140 East Tyler, suite 240
      Longview, Texas 75601
      Email: clementdunn@aol.com

this 11th day of February, 2015.

                                              /s/ Zan Colson Brown
                                              Zan Colson Brown
                                              Assistant District Attorney

                      CERTIFICATE OF COMPLIANCE

      I certify that the foregoing document complies with Texas Rules of

Appellate Procedure, Rule 9 (2014) regarding length of documents, in that

exclusive of caption, identity of parties and counsel, statement regarding oral

argument, table of contents, index of authorities, statement of the case, statement

of issues presented, statement of jurisdiction, statement of procedural history,

signature, proof of service, certification, certificate of compliance, and appendix, it

consists of 2,021 words.



                                              /s/Zan Colson Brown
                                              Zan Colson Brown
                                              Assistant District Attorney
      14
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