In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00283-CR
LAWRENCE JOSEPH GALL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from County Court at Law Number 14 District Court
Bexar County, Texas
Trial Court No. 698825, Honorable Carlo Key, Presiding
April 17, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Following a plea of not guilty, Appellant, Lawrence Joseph Gall, was convicted by
a jury of theft of property valued at $100 or more but less than $750, a Class B
misdemeanor, and sentenced to ninety days in jail and a $1,000 fine.1 By a sole issue,
he maintains the evidence is insufficient to support his conviction.2 The State concedes
1 TEX. PENAL CODE ANN. § 31.03(e)(2)(A).
2 Originally appealed to the Fourth Court of Appeals, this appeal was transferred to this Court by
the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001.
the value of the items stolen was not proven and requests the judgment be reformed to
reflect a conviction for the lesser-included offense of a Class C misdemeanor. We reverse
and render a judgment of acquittal.
BACKGROUND
According to the testimony of a Wal-Mart asset protection investigator, Appellant
entered the store carrying a backpack and a receipt and was acting suspicious. She
observed Appellant on camera as he placed an article of boys clothing in the backpack.
She also saw him enter a fitting room with a hoodie and jogging pants which she deduced
he put on underneath his clothing. Appellant also gathered certain housewares and
grocery items and attempted a fraudulent return at the service desk with the receipt he
had brought into the store. The return was denied, and he was asked to leave. The
investigator testified Appellant became combative and uncooperative and she called 911.
Other officers responded, subdued Appellant, and arrested him for theft.
Appellant challenges the sufficiency of the evidence to support his conviction. The
State concedes it failed to present any evidence of the value of the stolen items to support
a Class B misdemeanor but posits that even without any evidence of value, the conviction
can be reformed to the lesser-included offense of theft of property valued at less than
$100, a Class C misdemeanor. We disagree with the State’s position.
Should a conflict exist between precedent of the Fourth Court of Appeals and this Court on any relevant
issue, this appeal will be decided in accordance with the precedent of the transferor court . TEX. R. APP. P.
41.3.
2
STANDARD OF REVIEW
The only standard a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense the State is required
to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d
854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010). Due process requires the State to prove beyond a reasonable doubt every
element of the charged offense. Jackson, 443 U.S. at 326.
We consider all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and reasonable inferences therefrom, any
rational juror could have found the essential elements of the crime beyond a reasonable
doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). We give
deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Each fact need not point
directly and independently to the appellant’s guilt, as long as the cumulative force of all
the incriminating circumstances is sufficient to support the conviction. Id.
We compare the elements of the offense as defined by a hypothetically correct jury
charge to the evidence adduced at trial. Metcalf v. State, 597 S.W.3d 847, 856 (Tex.
Crim. App. 2020) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). In
our review, we must evaluate all of the evidence in the record, both direct and
3
circumstantial and whether properly or improperly admitted. Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
ANALYSIS
The information filed against Appellant alleged that on or about December 16,
2022, he unlawfully appropriated from Wal-Mart “ELEVEN(11) Food or Beverage item(s),
TWO(2) Clothing item(s)” valued at $100 or more but less than $750. Based on the
charging instrument, the State was required to prove Appellant unlawfully appropriated
property valued at more than $100 but less than $750 with intent to deprive the owner of
that property. TEX. PENAL CODE ANN. § 31.03(a), (e)(2)(A). The value of stolen items is
an essential element that defines the grade of the offense. Lang v. State, 664 S.W.3d
155, 174 (Tex. Crim. App. 2022).
Appellant’s jury trial commenced on July 17, 2023. Earlier that year, Appellant had
entered a plea of true to committing an offense—the theft for which he was on trial in the
underlying case—at his revocation hearing for another offense. During trial, the State
presented the asset protection investigator as its only witness. After her testimony
concluded, the jury was excused, and the State informed the court it intended to introduce
a portion of the transcript from the revocation hearing at which Appellant answered “true”
when asked if he had committed the offense of theft on December 16, 2022. Defense
counsel made several objections but after the trial court ordered certain redactions from
the transcript, the exhibit was admitted.
4
During closing arguments of the theft trial, defense counsel argued the State had
not met its burden to show the value of the property was at least $100 but less than $750.
Despite the lack of evidence of value, the jury returned a guilty verdict.
Here, the State concedes it did not present any evidence of the value of the stolen
items.3 Neither the fraudulent receipt nor any video surveillance of Appellant stealing the
items was introduced into evidence.
The State presents irreconcilable arguments. Relying on Simpson v. State, 591
S.W.3d 571, 572 (Tex. Crim. App. 2020), it asserts that although Appellant’s plea of true
is not dispositive of his guilt, it is “some evidence of guilt” and is tantamount to a judicial
confession, but then requests the judgment of conviction be reformed to reflect a
conviction for a Class C misdemeanor.
We first address Appellant’s plea of true. Simpson involved a defendant who had
pleaded true at a revocation proceeding but then pleaded self-defense at her criminal
trial. At trial, when the defendant requested a self-defense instruction, the State argued
the defendant was precluded from claiming self-defense based on her earlier plea of true.
Id. at 573. The Court of Criminal Appeals rejected the State’s argument that a plea of
true waived the defendant’s right to have a jury determine the merits of her self-defense
claim and held the State could not invoke collateral estoppel to prevent her claim of self-
defense. Id. at 577–78. The Court recognized the different burdens of proof at play in a
revocation hearing versus a criminal trial and observed a plea of true is a concession that
3 Value is defined as the fair market value at the time and place of the offense and if that cannot be
ascertained, the value is determined by replacement cost within a reasonable time after theft. TEX. PENAL
CODE ANN. § 31.08(a).
5
the State has enough evidence to prove its allegation by a preponderance standard but
distinguished that from the proof required to prove an offense beyond a reasonable doubt.
Id. at 577.
Here, we reject the State’s argument that Appellant’s plea of true provided proof
of the charged offense. The State’s assertion that it was “some evidence” of guilt
disregards the beyond-a-reasonable-doubt standard of proof required in a criminal trial
and acknowledged by the Court in Simpson.
Next, we address and also reject the State’s request for reformation of the
judgment to reflect a conviction for a Class C misdemeanor. The Court of Criminal
Appeals developed a test in Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App.
2014),4 to determine whether a finding of insufficient evidence could lead to reformation
to reflect a conviction for a lesser-included offense “to avoid the ‘unjust’ result of an
outright acquittal.” Reformation is required if the reviewing court can answer “yes” to two
questions: (1) in the course of convicting the appellant of the greater offense, must the
jury have necessarily found every element necessary to convict the appellant for the
lesser-included offense; and (2) conducting an evidentiary sufficiency analysis as though
the appellant had been convicted of the lesser-included offense at trial, is there sufficient
evidence to support a conviction for that offense? A negative answer to either question
results in an acquittal.
4 Thornton articulated the test based on the Court’s opinion in Bowen v. State, 374 S.W.3d 427,
431–32 (Tex. Crim. App. 2012).
6
We answer the first question “no” because of the requirement that the jury find
“every element necessary” of the lesser-included offense. The State has conceded the
element of value was not supported by any evidence. In Cobbins v. State, No. 06-18-
00039-CR, 2018 Tex. App. LEXIS 5600, at *4 (Tex. App.—Texarkana 2018, no pet.)
(mem. op., not designated for publication), the court accepted a jury’s use of “common
sense” to “apply common knowledge, observation, and experience gained in the ordinary
affairs of life when giving effect to the inferences that may reasonably be drawn from the
evidence” to supply the missing element of value in a theft case. (Emphasis added). The
defendant had stolen meat from a market and was charged with theft. The State did not
introduce any evidence of the value of the meat, but the court reasoned it is common
knowledge that markets charge for merchandise, determined the jury was free to
conclude the meat had value, and held the evidence was sufficient to support the
conviction. We disagree with Cobbins for permitting a jury to supply a missing essential
element of an offense by inference.5 Inferences may be drawn only from the evidence
presented and not from thin air.
5 Chief Justice Quinn joins the majority and further notes the court in Cobbins misspoke in
describing the State’s burden as “merely require[ing] [it] to prove that the stolen meat had some value.”
Cobbins, 2018 Tex. App. LEXIS 5600, at *4. Given the wording of the statute, the State’s burden consisted
of proving the value of the stolen property was “less than $2500.” TEX. PENAL CODE ANN. § 31.03(e)(4)(D).
“Some value” and “less than $2500” are different concepts. Any value satisfies the former, only a value
under a set threshold satisfies the latter. So, Cobbins is founded on an inaccurate premise, one inviting
speculation. And, even if one could infer, without speculation, that a quantity of meat sufficient to hide
under a “hoodie,” as in Cobbins, had a value under $2500, the same is not necessarily true of the boys
clothing stuffed in a backpack, a hoodie, jogging pants, housewares, and grocery items here. They are as
likely to have value under or over the $100 threshold at play for a Class C misdemeanor. Asking the jury
to select which one invites the jury to find an element of the offense based on mere speculation. That is
not allowable.
7
The problematic issue in determining value for a Class C misdemeanor is the
statutory requirement that the stolen property be valued at “less than $100.” 6 It is common
knowledge that Wal-Mart charges for its merchandise but to allow a jury to infer that stolen
property has value, an essential element of theft, absolves the State of its burden of proof
when prosecuting a Class C theft from a retail store.7 To reiterate, a jury should not be
permitted to use “common sense” to supply a missing essential element of an offense.
Although we need not reach the second inquiry under Thornton and Bowen, we
would also answer that question “no.” Without evidence of some value under $100,
reformation of Appellant’s conviction to that for a lesser-included offense is not the proper
remedy. Reformation is appropriate under the circumstances presented by Thornton and
Bowen and those circumstances are not present in the case before us. Ultimately, due
process requires the State to prove the elements of an offense beyond a reasonable
doubt and reformation should not be utilized to lessen that burden of proof in a criminal
trial. In a sufficiency review, even under a hypothetically correct jury charge,8 a conviction
6 See Winkley v. State, 123 S.W.3d 707, 713–14 (Tex. App.—Austin 2003, no pet.) (reforming a
conviction to a Class C misdemeanor (at that time property valued at less than $50). The court reasoned
that even if the stolen item was worthless, it had a value of less than $50 and the statute’s open-ended
provision could include worthless items or even items with negative value as opposed to closed-ended
provisions elsewhere in the theft statute. A sister court’s opinion is not binding precedent, Daniel v. State,
__ S.W.3d __, 2024 Tex. Crim. App. LEXIS 109, n.3 (Tex. Crim. App. 2024), except in certain cases
transferred from another appellate court pursuant to Rule 41.3 of the Texas Rules of Appellate Procedure.
More recent cases than Winkley from the Court of Criminal Appeals, such as Bowen and Thornton, direct
when reformation is appropriate. We decline to reform Appellant’s conviction to that of a lesser-included
offense without any evidence of value.
7 See generally Lieber v. State, 483 S.W.3d 175, 182 (Tex. App.—San Antonio 2015, pet. ref’d)
(Martinez, J. dissenting) (noting in theft of stolen jewelry that allowing the State to prove value by simply
asking the owner what she believes the value of the item is worth to her would easily satisfy the State’s
burden of proof).
8 A hypothetically correct jury charge compares the elements of the offense to the evidence
adduced at trial. Malik, 953 S.W.2d at 240. (Emphasis added). In the underlying case, there is no evidence
of value.
8
for either a Class B or Class C misdemeanor fails, and the only logical result is an
acquittal.
CONCLUSION
The trial court’s judgment is reversed and a judgment of acquittal is rendered.
Alex Yarbrough
Justice
Do not publish.
9
Lawrence Joseph Gall v. the State of Texas
Combined Opinion