                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-09-00132-CR
         ______________________________


     REGINALD DEWAYNE O'NEAL, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



   On Appeal from the Fourth Judicial District Court
                Rusk County, Texas
             Trial Court No. CR09-028




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION

       From all appearances, Reginald Dewayne O'Neal seemed to be a customer of Mohammed

Haider's convenience store in late 20081 until grabbing the cash from the register, warning Haider

not to follow him or else his "life will be miserable," and tugging at his own shirt. That caused

Haider to believe O'Neal had a weapon, to fear his life was in danger, and to show his hands to

O'Neal.

       As a result of these events, O'Neal was charged with and convicted of robbery, a second-

degree felony,2 and was sentenced to thirty-five years' imprisonment in the Institutional Division of

the Texas Department of Criminal Justice.3

       In his sole point of error on appeal, O'Neal contends the trial court committed reversible error

in failing to charge the jury on the lesser-included offense of theft. Because we find no error on the

part of the trial court in failing to so charge the jury, we affirm the judgment.



       1
         On December 23, 2008, O'Neal entered Haider's convenience store and bus station in
Henderson and inquired if Haider sold a certain brand of cigarettes. As Haider retrieved the
cigarettes, O'Neal indicated he wanted to purchase a few other items, to be rung up separately.
Haider took five dollars from O'Neal to pay for the other items, and when Haider opened the register,
O'Neal grabbed the cash from the register and told Haider, "If you follow me - - your life will be
miserable." As he said this, O'Neal tugged at his own shirt, causing Haider to believe he had a
hidden weapon. Haider "showed his hands," believing his life to be in danger. After attempting to
locate O'Neal on his own, Haider contacted police, who apprehended and arrested O'Neal within the
hour.
       2
           TEX . PENAL CODE ANN . § 29.02 (Vernon 2003).
       3
           O'Neal's robbery sentence was enhanced by one final prior institutional division conviction.

                                                    2
       A.      Theft Is a Lesser-Included Offense of Robbery

       Article 37.09 of the Texas Code of Criminal Procedure sets forth the parameters of what a

lesser-included offense is. An offense is lesser-included if:

       (1)     it is established by proof of the same or less than all the facts required to
       establish the commission of the offense charged;
       (2)     it differs from the offense charged only in the respect that a less serious injury
       or risk of injury to the same person, property, or public interest suffices to establish
       its commission;
       (3)     it differs from the offense charged only in the respect that a less culpable
       mental state suffices to establish its commission; or
       (4)     it consists of an attempt to commit the offense charged or an otherwise
       included offense.

TEX . CODE CRIM . PROC. ANN . art. 37.09 (Vernon 2006).

       The Texas Court of Criminal Appeals has set forth a two-step analysis to determine whether

a defendant is entitled to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528

(Tex. Crim. App. 2007); Jones v. State, 241 S.W.3d 666, 670 (Tex. App.—Texarkana 2007, no pet.).

Under this approach, the court must look to the "facts and elements as alleged in the charging

instrument, and not just to the statutory elements of the offense, to determine whether there exists

a lesser-included offense of the greater charged offense." Hall, 225 S.W.3d at 526. The initial

determination under the "cognate-pleadings" test, as set forth in Hall, is one of whether a lesser-

included offense exists based on a comparison of the greater offense and the lesser offense as

contained in the charging document, without looking to the evidence adduced in that particular case.



                                                   3
Id. at 535–36; Jones, 241 S.W.3d at 670. This is a question of law. Hall, 225 S.W.3d at 535. Only

after the first determination is answered positively do we proceed to the second step of conducting

an inquiry concerning whether there was sufficient evidence at trial to have required the court to

submit to the jury the issue of the lesser-included offense. Jones, 241 S.W.3d at 670–71. Here, the

lesser-included offense O'Neal claims should have been submitted to the jury was that of theft.

       A person commits the offense of theft if "he unlawfully appropriates property with intent to

deprive the owner of property."4

       We next look to the indictment under which O'Neal was charged by the State. The

indictment alleges that O'Neal,

       while in the course of committing theft of property with intent to obtain and maintain
       control of said property, intentionally, knowingly, or recklessly threaten[ed]
       Mohammed Haider with imminent serious bodily injury and death by holding his
       hand in his belt as if he had a weapon and grabbing money from the cash drawer
       when the said Mohammed Haider opened the cash register.

       Proof of robbery requires proof of the elements comprising simple theft, as it is alleged that

O'Neal was "in the course of committing theft of property with the intent to obtain and maintain



       4
           TEX . PENAL CODE ANN . § 31.03(a) (Vernon Supp. 2009). Subsection (b) provides that

       appropriation of property is unlawful if: (1) it is without the owner's effective
       consent; (2) the property is stolen and the actor appropriates the property knowing
       it was stolen by another; or (3) property in the custody of any law enforcement
       agency was explicitly represented by any law enforcement agent to the actor as being
       stolen and the actor appropriates the property believing it was stolen by another.

TEX . PENAL CODE ANN . § 31.03(b) (Vernon Supp. 2009).

                                                 4
control of said property." Here, theft is established by proof of the same or less than all the facts

required to establish the commission of the offense charged; the inclusion of theft within the

description of robbery would tend to show the inclusion of theft as a lesser-included offense of

robbery.5

       B.      The Evidence Does Not Support a Jury Instruction on Theft

       Even though theft is a lesser-included offense of robbery, that does not solve the issue of

whether the jury should have been instructed on the offense of theft as a lesser-included offense. In

order to make this determination, we must evaluate the evidence introduced at trial. Id. at 671. The

standard here requires that the record contain some evidence that would permit a rational jury to find

that the defendant is guilty only of the lesser offense. Feldman v. State, 71 S.W.3d 738, 750 (Tex.

Crim. App. 2002). The evidence must establish the lesser-included offense as a valid rational

alternative to the charged offense. Feldman, 71 S.W.3d at 751; Wesbrook v. State, 29 S.W.3d 103,

113 (Tex. Crim. App. 2000) .

       The rationale for this evidentiary requirement seeks to ensure that the jury is not instructed

on a lesser-included offense not raised by the evidence; such an instruction "would constitute an

invitation to the jury to return a compromise or otherwise unwarranted verdict." Arevalo v. State,

       5
        We note that the jury was charged with the lesser-included offense of "theft from a person."
This charge is not a separate offense; a charge of theft under Section 31.03(a) of the Texas Penal
Code, which also includes the element "from the person" under Section 31.03(e)(4)(B) of the Texas
Penal Code, properly charges the offense of theft, a state jail felony. The record does not support
the submission of the lesser-included offense of "theft from a person," as there is no evidence that
O'Neal stole anything from Haider's person. This issue was not complained of on appeal.

                                                  5
943 S.W.2d 887, 889 (Tex. Crim. App. 1997). An instruction on a lesser-included offense must not

constitute an invitation to the jury to reach an irrational verdict. Id. at 890. It is not enough,

however, that the jury may disbelieve crucial evidence pertaining to the greater offense. 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. Hampton v. State, 109

S.W.3d 437, 441 (Tex. Crim. App. 2003); Jones, 241 S.W.3d at 671. Anything more than a scintilla

of evidence is sufficient to entitle a defendant to a lesser charge. Bignall v. State, 887 S.W.2d 21,

23 (Tex. Crim. App. 1994).

        With these evidentiary requirements in mind, we evaluate the evidence in this case to

determine whether the lesser-included offense of theft should have been submitted to the jury.

O'Neal points only to one admission made at the time of his arrest to the effect that, "I only stole

cigarettes from that store" in support of his assertion that inclusion of a jury instruction on theft was

warranted. O'Neal also points to the fact that the proceeds of the robbery (cash and cigarettes) were

not recovered.

        The question here is whether there is any evidence that, if believed, would eliminate the

threat component of the proof required for a robbery conviction. Whether none or some of the stolen

property was recovered has no relevance to any threat component. Thus, the question becomes

solely whether the statement, "I only stole cigarettes from that store," is any evidence tending to

refute the other evidence of a threat by O'Neal.



                                                   6
         We read that statement, not as O'Neal's denial that he threatened Haider, but as his comment

that he stole only cigarettes, not cash.6 That reading is consistent with the context of his other,

related explanation, that officers found no stolen items.

         Contrary to this failure of evidence was the compelling testimony of Haider that he was

threatened by O'Neal and that O'Neal's actions caused him to fear for his life and safety. While

Haider admitted that he attempted to locate O'Neal after the robbery and that he would not normally

pursue a person that he was afraid of, this testimony, at most, may cause a jury to disbelieve crucial

evidence pertaining to the greater offense of robbery. It is not, however, directly germane to the

lesser-included offense of theft. This evidence fails to satisfy the requirement that a jury could find

that, if O'Neal was guilty, he was guilty only of the lesser offense of theft. Accordingly, there was

no error on the part of the trial court in failing to instruct the jury on the lesser-included offense of

theft.




         6
        Those who use precise grammar might take issue with our reading of O'Neal's statement and
argue that O'Neal said he only stole, implying that he did not threaten. But we are comfortable with
our understanding of what O'Neal intended with his oral utterance made under pressure. It was said
aloud, not written in a carefully prepared school essay.

                                                   7
       Because there was nothing more than a scintilla of evidence for the finder of fact to consider

directly germane to the lesser-included offense of theft, the trial court did not err in refusing to

submit an instruction on theft to the jury.

       We affirm the judgment of the trial court.




                                                     Josh R. Morriss, III
                                                     Chief Justice

Date Submitted:        October 20, 2009
Date Decided:          November 5, 2009

Do Not Publish




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