                              No. PD-0438-15
__________________________________________________________________________

                  IN THE COURT OF CRIMINAL APPEALS
__________________________________________________________________________

                         ROCHELLE SCHELLING

                                           Appellant,

                                     v.

                          THE STATE OF TEXAS


__________________________________________________________________________

                 PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________________

                               Clement Dunn
                           State Bar No. 06249300
                          140 East Tyler, Suite 240
                           Longview, Texas 75601
                          Telephone: 903-753-7071
                             Fax: 903-753-8783

July 24, 2015




                       ORAL ARGUMENT WAIVED
                         IDENTITY OF PARTIES AND COUNSEL

        Appellant certifies that the following is a complete list of all parties to the trial
court’s judgment and the names and addresses of their trial and appellate counsel.

1.      Appellant:      Rochelle Schelling

2.      Appellant’s Trial Counsel:              Clement Dunn
                                                Attorney at Law
                                                140 E. Tyler Street, Suite 240
                                                Longview, TX 75601
                                                TSB No. 06249300

3.      Appellant’s Counsel on Appeal:          Clement Dunn
                                                Attorney at Law
                                                140 E. Tyler Street, Suite 240
                                                Longview, TX 75601
                                                TSB No. 06249300


4.      Attorney for the State:         Zan Brown
                                        Assistant District Attorney, Gregg County
                                        101 East Methvin St., Suite 333
                                        Longview, Texas 75601
                                        TSB No. 03205900

                                        Lisa McMinn
                                        State Prosecuting Attorney
                                        PO Box 13046
                                        Austin, TX 78711-3046
                                        TSB No. 13803300




                                                 i.
                                                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT .                                               ...................................... 1

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

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                    2

QUESTION FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 2
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

EXHIBIT A (COURT OF APPEALS’ OPINION). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                                                      ii
                                            INDEX OF AUTHORITIES

                                                             Cases

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Brown v. State, 333 S.W.3d 606, 608 (Tex. App.—Dallas 2009, no pet.). . . . . . . . . . . . . . . 2

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19)
......................................................................... 3

Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                     Statutes and Codes

Section 31.03(e)(4)(D), Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Section 15.01(a), Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Section 31.03(a) of the Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Section 31.01(4) of the Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3




                                                                iii
                                            NO. PD-0438-15

                             TO THE COURT OF CRIMINAL APPEALS

                                      OF THE STATE OF TEXAS

    ROCHELLE SCHELLING                                                                 Appellant

    V.

    THE STATE OF TEXAS                                                          Appellee

                                               *****

                            PETITION FOR DISCRETIONARY REVIEW

                                               *****

    TO THE HONORABLE COURT OF CRIMINAL APPEALS:

              Comes Now the Appellant, by and through her attorney, Clement Dunn and respectfully

    urges this Court to grant discretionary review of the above named cause.

                         STATEMENT REGARDING ORAL ARGUMENT

          Believing that this Honorable Court can resolve this case on the basis of the record and

   the brief, Appellant respectfully does not request oral argument.

                                    STATEMENT OF THE CASE

   Offense:         Theft



   Verdict:         Guilty; Fifteen (15) months confinement - Texas Department of Criminal Justice

                    - State Jail Division



   Date of Verdict:         June 30, 2014

   Trial Court:     124th District Court, Gregg County, Texas.

          This case involves a prosecution for Theft, a State Jail Felony, based on an enhancement

   of the underlying charge under Section 31.03(e)(4)(D), Texas Penal Code, alleging prior theft

Petition For Discretionary Review, SCHELLING         1
   convictions. C.R., at 4. The Appellant waved her right to a jury trial, and proceeded in a bench

   trial on her plea of “not guilty.” C.R., at 10;12. At the conclusion of this trial, the Court found

   the Appellant “guilty.” C.R., at 112; R.R. 3, at 46-48. Following the preparation of a presentence

   report, the Court held a hearing on sentencing; at the conclusion of that hearing, the Court

   sentenced the Appellate to serve fifteen months’ confinement in a State Jail. R.R.3, at 48; R.R.4,

   at 16.

                          STATEMENT OF PROCEDURAL HISTORY

   Date of Opinion from Sixth Court of Appeals:            March 17, 2015

   No motion for rehearing was filed.



                                     QUESTION FOR REVIEW

            Has a potential “shoplifter” who has placed items in a shopping cart and who has not left

   the interior of the store when apprehended committed a “completed” act of theft?.



                                             ARGUMENT

              The instant case involves an act of potential shoplifting–but an act that the Appellant

       respectfully conteneds remained potential only, not completed. The Appellant dies not

       contend she committed no crime. Rather, the Appellant argues here that the facts of the case

       should make her guilty of “attempted” theft–not a “completed” act of theft.

               The Court of Appeals summarized the facts pertinent to this question as follows:


                               In evaluating legal sufficiency, we review all the evidence in the light
                               most favorable to the verdict to determine whether any rational fact-
                               finder could have found beyond a reasonable doubt that Schelling
                               committed theft. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
                               App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));
                               Brown v. State, 333 S.W.3d 606, 608 (Tex. App.—Dallas 2009, no
                               pet.). We examine legal sufficiency under the direction of the Brooks
                               opinion, while giving deference to the responsibility of the jury “to
                               fairly resolve conflicts in testimony, to weigh the evidence, and to

Petition For Discretionary Review, SCHELLING           2
                               draw reasonable inferences from basic facts to ultimate facts.”
                               Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing
                               Jackson, 443 U.S. at 318–19) .

       Opinion, at 3-4. The Opinion goes further, describing the Appellant’s exit from the store,

       and while she did act evasively–she no longer possessed any property belonging to the

       store.

                Section 15.01(a), Texas Penal Code, defines a “criminal attempt as follows:

                       Sec. 15.01. CRIMINAL ATTEMPT. (a) A person commits an offense if,
                       with specific intent to commit an offense, he does an act amounting to
                       more than mere preparation that tends but fails to effect the commission of
                       the offense intended.

       Section 15.01(a), Texas Penal Code.

                The Appellant respectfully submits that this language describes her conduct in the

       instant case. The “owner” never lost “control” over the property. The “theft” was never

       completed.

                Section 31.03(a) of the Texas Penal Code defines the offense of theft:

                       Sec. 31.03. THEFT. (a) A person commits an offense if he unlawfully
                       appropriates property with intent to deprive the owner of property.

       Section 31.03(a), Texas Penal Code.

                Section 31.01(4) of the Texas Penal Code defines the term “appropriate”:

                       (4) “Appropriate” means:
                       (A) to bring about a transfer of purported transfer of title to or other
                       nonpossessory interest in property, whether to the actor or another; or
                       (B) to acquire or otherwise exercise control over property other than real
                       property.

       Section 31.01(4), Texas Penal Code.

                As set forth in the Appellant’s Brief on direct appeal, several points emerge from

       the record that tend to show that the Appellant may have attempted a theft–but did not

       commit a completed offense of theft:

                       1.      The Appellant never left premises under the control of the owner
                               of the property. She never exited the store. That the Appellant
Petition For Discretionary Review, SCHELLING         3
                               never “acquired” or “controlled” the property becomes clear when
                               a store employee takes control of the shopping cart–and the
                               property within it–entirely within the store itself.
                       2.      The property at all times remained in the shopping cart–which
                               belonged to the store (the “owner”). The indictment does not
                               allege–and no other implication arises from the record–that the
                               Appellant “stole,” or committed theft, of the shopping cart itself.
                               Thus at all times the property remained within premises (the store
                               itself) controlled by the owner and within other property (the
                               shopping cart) in the possession of and under the control of the
                               owner(i.e., not alleged to have been “appropriated by the
                               Appellant).
                       3.      The facts reflect no concealment, or effort to conceal, any of the
                               items from plain view of the public, store employees, or cameras,
                               by the Appellant.1
                       4.      The Appellant did not alter, impair, or damage any of the items.
                       5.      The “tags,” indicating ownership by the store, were not removed,
                               altered, or impaired in any way by the Appellant.
                       6.      The Appellant at no time trespassed or in any way entered any area
                               not open to the public.
                       7.      The record indicates no act on the part of the Appellant to conceal
                               herself from the public view, or disguise her appearance in any
                               way.

               Yet, the Court of Appeals concluded:

                               Here the evidence showed that (the Appellant) removed
                               merchandise from the store shelves, placed the items into her cart,
                               walked past the cash registers, and was about to exit the store.

       Opinion, at 5-6. The Court next finds: “The evidence is legally sufficient to show that

       (the Appellant) exercised control over the property in her cart.” Id., at 6.

               The Appellant respectfully asserts that the exercise of control had not been

       completed. Instead, this conduct “tended but failed to effect the commission of the

       offense intended.” (See Section 15.01(a), Texas Penal Code, set forth above.).

       Significantly, the Appellant may have been “about to exit the store”–but did not. The

       Appellant never removed the property from the premises that also belonged to the owner



       1
         See and cf. Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1981), on which the trial
court relied. See R.R.3, at 47. In Hill, the appellant had actually concealed a handgun (the stolen
property) under his shirt. Id., at 521. This provides a significant distinction between the facts of
Hill and the facts of the instant case.
Petition For Discretionary Review, SCHELLING          4
       of the property allegedly stolen. Also, although the Court of Appeals refers to “her”

       basket, in fact that basket belonged to the store–the owner of the property.

              Citing, among other cases, Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App.

       1981), the Court states that to “show theft under Texas law, it is not necessary to establish

       that the property was removed or carried away from the premises.” Opinion, at 5. But in

       Hill, the defendant concealed the property (a handgun) under his shirt. Additionally, there

       are instances in which individuals consume or destroy property without leaving the

       premises–e.g., a store–where the property was found. The instant case differs

       substantially from these.

              The Appellant respectfully submits that where items are in a shopping cart that

       belongs to the store–the items are not in the direct, literal physical possession of the

       actor–then the actor has not completed the exercise of control over those items, so long as

       the actor remains within the premises of the store. Theft has not been completely effected.

       This constitutes an “attempt,” under Section 15.01(a), Texas Penal Code, not a completed

       theft under Section 31.03(a), id..



                                                PRAYER

              The Appellant respectfully requests this cause be dismissed on the basis of

       insufficient evidence of a completed offense; alternatively, the Appellant would request

       the cause be remanded to the Court of Appeals for reconsideration in light of a proper

       understanding of the requirements for a theft to be “complete,” instead of “attempted.”

                                                              Respectfully submitted,

                                                              ___//ss//___Clement Dunn_____
                                                              State Bar No. 06249300
                                                              140 East Tyler, Suite 240
                                                              Longview, Texas 75601
                                                              Telephone: 903-753-7071
                                                              Fax: 903-753-8783
Petition For Discretionary Review, SCHELLING          5
                                    CERTIFICATE OF SERVICE

              I hereby certify that a true and correct copy of this Petition for Discretionary Review

       was delivered to the Gregg County District Attorney’s Office, Gregg, Texas on this

       23rd day of July 2015.
                                                             ___//ss//___Clement Dunn_____


                                    CERTIFICATE OF SERVICE

              I hereby certify that a true and correct copy of this Petition for Discretionary Review

       was mailed to the State’s Prosecuting Attorney, P. O. Box 13046, Austin, Texas,

       78711-3046 on this 23rd day of July, 2015.

                                                             ___//ss//___Clement Dunn_____

                                CERTIFICATE OF WORD COUNT


       I hereby certify that a total of 1861 words are included in this PDR.

                                                             ___//ss//___Clement Dunn_____




Petition For Discretionary Review, SCHELLING         6
                                EXHIBIT A




Petition For Discretionary Review, SCHELLING   7
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  Case # PD-0438-15
   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             07/23/2015 04:38:16 PM
   Case Number                            PD-0438-15
   Case Description
   Assigned to Judge
   Attorney                               Clement Dunn
   Firm Name                              Clement Dunn
   Filed By                               Clement Dunn
   Filer Type                             Not Applicable
   Fees
   Convenience Fee                        $0.00
   Total Court Case Fees                  $0.00
   Total Court Filing Fees                $0.00
   Total Court Service Fees               $0.00
   Total Filing & Service Fees            $0.00
   Total Service Tax Fees                 $0.00
   Total Provider Service Fees            $0.00
   Total Provider Tax Fees                $0.00
   Grand Total                            $0.00
   Payment
   Account Name                           Clement Dunn
   Transaction Amount                     $0.00
   Transaction Response
   Transaction ID                         10172660
   Order #                                006203448-0

   Petition for Discretionary Review
   Filing Type                                          EFile
   Filing Code                                          Petition for Discretionary Review
   Filing Description
   Reference Number
   Comments
   Status                                               Rejected
   Fees
   Court Fee                                            $0.00
   Service Fee                                          $0.00
   Rejection Information
   Rejection Time        Rejection Comment
   Reason
             07/24/2015 The petition for discretionary review does not contain a copy of the court of
   Other
             11:10:38 AM appeals opinion [Rule 68.4(j)]. You have ten days to file a corrected petition.


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   Documents
   Lead Document                          R. Schelling PDR.pdf                                                     [Original]




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