Schelling, Rochelle

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
Envelope Details

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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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Envelope Details

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

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