Affirmed and Memorandum Opinion filed January 31, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-00866-CR
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PEDRO ROGELIO ALVAREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 04CR0085
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M E M O R A N D U M O P I N I O N
Challenging his conviction for burglary of a habitation, appellant asserts, in one issue, that the trial court erred by not instructing the jury on the lesser-included offense of attempted theft. Finding no merit in appellant=s argument, we affirm.
I. Factual and Procedural Background
On July 3, 2003, at approximately 9:00 p.m., Gloria and Daniel Cadriel were leaving their home when Gloria walked into the garage and saw appellant pulling away a Astriping machine.@ Gloria yelled at appellant and asked him what he was doing. Appellant ignored her and continued to pull the machine away from the house. However, appellant began to run when he heard Daniel come out of the house and into the garage. Daniel saw appellant pulling the machine and told Gloria to go inside and call the police.
While Gloria was summoning the police, Daniel ran after appellant and caught him about a half a block down the street. According to Daniel=s trial testimony, appellant threatened to cut him while holding a sharp object in his hand. At that point, the Cadriels= two sons were running toward Daniel and appellant. Daniel told his sons to stay away because appellant was carrying a knife. Daniel backed up, walked away, and told appellant, AWe can walk as far as you want. The police are coming.@ Daniel=s daughter then pulled up in the family Suburban, and Daniel told his sons to get the tire tool from the vehicle.
Shortly thereafter, Officer William Goodwin, a detective with the Texas City Police Department, having received Gloria=s call for help, arrived on the scene. Officer Goodwin told Daniel and appellant to put their weapons down and took appellant into custody. Sergeant Brain Goetschius, another detective with the Texas City Police Department, took a video statement from appellant after his arrest. Appellant stated that he Alives on the street@ and takes things to survive. He was near the Cadriel home when he saw a machine close to the garage door and decided to steal it. Daniel uses the Astriping machine@ for his work with the City of Texas City traffic department. The machine was always kept in the corner of the garage.
Appellant stated that because the machine had wheels on it, he was able to reach inside the garage and pull the machine out. He left the machine in the yard after he realized he had been caught.
Appellant was charged with burglary of habitation by attempting to commit a theft or committing theft. The indictment also contained an enhancement paragraph. Appellant pleaded not guilty and received a trial by jury. Appellant did not put on any evidence at trial. Before the case was submitted to the jury, the State objected to the inclusion of the lesser-included offense of criminal trespass and the trial court overruled the objection. Appellant requested and received the lesser-included offense of criminal trespass and made no further objections to the court=s charge. At the conclusion of the trial, the jury convicted appellant of the charged offense, and the trial court, finding the enhancement paragraph Atrue,@ assessed punishment at twelve years in the Institutional Division of the Texas Department of Criminal Justice.
II. Analysis
Did the trial court err in failing to instruct the jury on the lesser-included offense of attempted theft?
Appellant contends the trial court erred by refusing to charge the jury on the lesser-included offense of attempted theft. Appellant argues that although the trial court submitted criminal trespass as a lesser-included offense at his request, this was not the lesser-included offense that should have been included. The State argues that appellant did not properly object to the trial court=s refusal to charge the jury on the lesser-included offense, and, therefore, has waived this issue. In the alternative, the State argues that even if no objection were necessary, the trial court did not err in failing to include sua sponte a lesser-included offense of attempted theft because the evidence did not raise that lesser-included offense.
We conclude that appellant did not waive this issue by failing to object. However, we also conclude that the State=s alternative argument is correct. In Texas, a jury charge error is analyzed according to whether the objection to the alleged error was asserted at trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is Acalculated to injure the rights of defendant,@ which means no more than that there must be some harm to the accused from the error. Id. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless. Id. On the other hand, if no proper objection was made at trial and the accused must claim that the error was Afundamental,@ he will obtain a reversal only if the error is so egregious and created such harm that he Ahas not had a fair and impartial trial@Cin short, Aegregious harm.@ Id.; see also Tex. Code. Crim. Proc. Ann. art. 36.19 (Vernon 1981).
Therefore, our first inquiry must be whether appellant=s complaint on appeal was asserted at trial. At the charge conference, appellant=s counsel requested the lesser-included offense of criminal trespass, which the trial court included; appellant=s counsel did not make any mention of an instruction on attempted theft. Thus, we conclude that appellant did not properly object to the charge on this basis. In reviewing a claim of error not asserted in the court below, we first must determine whether charge error actually exists. See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); Almanza, 686 S.W.2d at 171. If we find error, we then determine whether any resulting harm requires reversal, using the Aegregious harm@ standard set for in Almanza. Mann, 964 S.W.2d at 641; Duke v. State, 950 S.W.2d 424, 426 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d).
Appellant claims that the trial court erred because it did not sua sponte charge the jury on the lesser-included offense of attempted theft. Whether a charge on a lesser-included offense is required is determined by a two‑pronged inquiry: (1) Does the offense constitute a lesser-included offense?, and (2) Was the lesser-included offence raised by the evidence at trial? Schweinle v. State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446B47 (Tex. Crim. App. 1981). In this case, the indictment read:
The Grand Jurors for the County of Galveston, State aforesaid, duly organized as such at the January term, A.D., 2004, of the District Court of said County, 56th Judicial District of Texas, upon their oaths in said Court present that PEDRO ROGELIO ALVAREZ on or about the 3rd day of July, A.D., 2003, and anterior to the presentment of this indictment in the County of Galveston and State of Texas, then there intentionally and knowingly enter a habitation, without the effective consent of Daniel Cadriel, the owner thereof, and attempted to commit or committed theft of property, to wit: stripping machine, owned by Daniel Cadriel.
A person commits burglary of a habitation if, without the effective consent of the owner, he enters a habitation and commits or attempts to commit a felony, theft, or an assault. Tex. Pen. Code Ann. ' 30.02(a)(3) (Vernon 2003). A person commits a theft if he appropriates property, without the owner=s effective consent, with intent to deprive the owner of the property. See id. at ' 31.03. Where theft is not properly charged (i.e., description of value or property value) in a burglary indictment, it is not a lesser-included offense thereof. See Ex Parte Sewell, 606 S.W.2d 924, 924 (Tex. Crim. App. 1980) (stating that while the indictment properly alleges as the primary offense the offense of burglary; the allegations are insufficient to allege the offense of theft because they do not describe nor allege the value of the stolen property); Franks v. State, 516 S.W.2d 185, 187 (Tex. Crim. App. 1974) (stating that where theft is not charged in a burglary indictment, it is not a lesser included offense); Hardin v. State, 458 S.W.2d 822, 824 (Tex. Crim. App. 1970) (holding that where offense of theft was not charged in indictment for burglary with intent to commit theft and where evidence did not show value of items taken so as to reflect whether theft committed after entry was a misdemeanor or a felony, failure to instruct on misdemeanor theft as a lesser included offense was not error); Bugge v. State, 2003 WL 21782635, at *4, n.3 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (assuming without deciding that theft is a lesser included offense of burglary of a habitation because the State conceded on this issue); Dean v. State, 938 S.W.2d 764, 770 (Tex. App.CHouston [14th Dist.] 1997, no pet.) (holding that since only burglary was charged and since theft by receiving is not a lesser included offense of burglary, the first prong of the Rousseau test is not satisfied, and the trial court properly refused to include an instruction on that offense in its charge); Steward v. State, 830 S.W.2d 771, 774 (Tex. App.CHouston [14th Dist.] 1992, no pet.) (holding that misdemeanor theft was not lesser included offense of burglary of habitation where indictment read as follows . . .Aintentionally and knowingly enter a habitation...and therein attempted to commit and committed theft,@ so inclusion of misdemeanor theft offense in instructions to jury was fundamental error resulting in egregious harm to defendant that rendered conviction for misdemeanor theft void).
In this case, however, theft and attempted theft are charged in the indictment with a description of the property. Without deciding whether theft is always a lesser- included offense of burglary of a habitation, we conclude that in this case it is because it was properly charged in the indictment. Thus, the first prong of Rousseau is satisfied. See Garcia v. State, 571 S.W.2d 896, 899 (Tex. Crim. App. [panel op.] 1978) (noting that burglary under section 30.02(a)(3) can include the commission of theft); Martinez v. State, 635 S.W.2d 629, 630 (Tex. App.CAustin 1982, pet. ref=d) (finding that theft was a lesser included offense of burglary). The remaining question, therefore, is whether the second prong is satisfied. In order to satisfy this part of the test, there must be some evidence that would permit a rational jury to find that if guilty, the defendant is guilty only of the lesser-included offense. Schweinle, 915 S.W.2d at 18. Anything more than a scintilla of evidence from any source is sufficient to entitle a defendant to submission of the issue. Id.; Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). Therefore, the next step in our analysis is to determine whether there is evidence that if guilty, appellant was guilty only of the offense of attempted theft. See Schweinle, 915 S.W.2d at 19.
In determining whether the trial court erred by failing to charge the jury on the lesser- included offense, we review all of the evidence presented at trial. Rousseau, 855 S.W.2d at 673; Havard v. State, 800 S.W.2d 195, 215 (Tex. Crim. App. 1989) (opinion on reh=g). After reviewing the entire record, we hold there is no evidence that would permit a rational jury to find that if guilty, appellant was guilty only of attempted theft. See Schweinle, 915 S.W.2d at 18. The only offense supported by the evidence in this case is that appellant is guilty of burglary of a habitation by committing theft. The evidence is undisputed that appellant completed the offense of theft. A person commits the offense of theft if he Aunlawfully appropriates property with the intent to deprive the owner of the property.@ Tex. Pen. Code Ann. ' 31.03(a). Appropriate is defined as Ato acquire or otherwise exercise control over property other than real property.@ See id. at ' 31.01 (4) (B). The offense of theft is complete when each element of the crime has occurred, disregarding any subsequent transportation of the property. Barnes v. State, 824 S.W.2d 560 (Tex. Crim. App. 1991).
Appellant completed the elements of the offense of theft when he took possession of the stolen property from the garage. See Freeman v. State, 707 S.W.2d 597, 605 (Tex. Crim. App. 1986) (stating that appropriation occurs when one person unlawfully exercises control over property belonging to another); Rider v. State, 567 S.W.2d 192, 196 (Tex. Crim. App. 1978); Senter v. State, 411 S.W.2d 742, 744B45 (Tex. Crim. App. 1967) (holding that the offense of theft is completed once the defendant takes possession of the property, even if the property is not ultimately removed from the presence or premises of the owner). There is no evidence in the record that appellant, if guilty, is guilty only of the lesser-included offense of attempted theft. Appellant did not testify at trial and all of the witnesses at trial testified that appellant took possession of the machine and began to walk away from the garage. In addition, appellant himself admits in his videotaped statement, which was introduced as evidence, that he reached into the garage and pulled the machine out of the garage and began to walk away. To be entitled to a jury charge on a lesser-included offense, it is not enough that the jury might disbelieve crucial evidence pertaining to the greater offense. Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). Because the evidence does not support a lesser-included offense instruction for attempted theft, the trial court did not err by failing to instruct the jury on this offense.[1] See Bignall, 887 S.W.2d at 23; see also Bugge, 2003 WL 21782635, at *5 (holding that evidence did not warrant instruction on lesser-included offense of theft when victim testified that bicycle was in the garage on the day of offenses and that she saw defendant outside garage in driveway with bicycle). Therefore, we overrule appellant=s sole issue, and affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed January 31, 2006.
Panel consists of Justices Hudson, Frost, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Because we find no error in the trial court=s charge, it is unnecessary to proceed to the Aegregious harm@ analysis prescribed for charge error that appellant failed to raise in the trial court. See Almanza, 686 S.W.2d at 171.