Rochelle Schelling v. State ( 2014 )

ACCEPTED
06-14-00173-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/22/2014 4:44:47 PM
DEBBIE AUTREY
CLERK
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
12/30/2014 11:48:00 AM
No. 06-14-00173-CR DEBBIE AUTREY
Clerk
__________________________________________________________________________
IN THE SIXTH DISTRICT COURT OF APPEALS
AT TEXARKANA, TEXAS
__________________________________________________________________________
ROCHELLE SCHELLING
Appellant,
v.
THE STATE OF TEXAS
Appealed from the 124th District Court
Gregg County, Texas
__________________________________________________________________________
BRIEF OF THE APPELLANT
__________________________________________________________________________
Clement Dunn
State Bar No. 06249300
140 East Tyler, Suite 240
Longview, Texas 75601
Telephone: 903-753-7071
Fax: 903-753-8783
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: Christopher Botto
Assistant District Attorney, Gregg County
101 East Methvin St., Suite 333
Longview, Texas 75601
TSB No. 24064926
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUE PRESENTED . .......................................................... 1
STATEMENT OF THE FACTS. ................................................... 2
SUMMARY OF THE ARGUMENT . ................................................ 3
ARGUMENT .. .............................................................. 3
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ii
INDEX OF AUTHORITIES
Cases
Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Jackson v. Virginia, 443 U.S. 307(1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Drichas v. State, 175 S.W. 3d 795,798 (Tex. Crim. App. 2005).. . . . . . . . . . . . . . . . . . . . . . 5
Constitutional Provisions
Section 31.03(e)(4)(D) of the Texas Penal Code.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 31.03(a) of the Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 31.01(4) of the Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 15.01(a), Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
iii
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 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 REGARDING ORAL ARGUMENT
Believing the instant case contains issues capable of resolution on the basis of record
and the Appellant respectfully does not request oral argument.
ISSUE PRESENTED
The evidence at trial was legally insufficient to show beyond a reasonable doubt that
the Appellant committed theft.
BRIEF OF APPELLANT, ROCHELLE
PAGE 1
STATEMENT OF THE FACTS
At trial, the State first called Destinee Jeffery to testify. Ms. Jeffery testified that she
was working at Wal-Mart on the date of this alleged theft. R.R.3, at 13-14. She described her
encounter with the Appellant, who pushed a shopping cart containing several items past the area
when the cash registers are within the store. Seeing this, Ms. Jeffery intervened, grabbing the
cart, and confronting the Appellant. R.R.3, at 14-16.
When Ms. Jeffery asked the Appellant if she had a receipt for the merchandise in the
shopping cart, the Appellant replied that she was going to the car to get her money. The
Appellant left the store–leaving all of the merchandise, still in the shopping cart, behind. Ms.
Jeffery watched her walking into the parking lot, and testified that she tried to get in a car, but
was denied permission by the people in it; the Appellant next walked towards a gas station and
did get into a car with someone. R.R.3, at 15-16.
Officers of the Longview Police Department arrested the Appellant approximately one
and a half miles away, about twenty-five minutes after the event in question had occured at Wal-
Mart. R.R.3, at 31-34. Officer Glenn Derr of the Longview Police Department testified that after
taking the Appellant into custody, he returned her to Wal-Mart. Then she was identified as the
person involved in the encounter with Ms. Jeffery. Id., at 34-37.
The State also introduced a videotape made by recording equipment at Wal-Mart. This
tape depicts the encounter between Ms. Jeffery and the Appellant at the front of the store.
Offered at R.R.3, at 19, this appears as Exhibit 3(R.R.5); the tape shows Ms. Jeffery
approaching the Appellant and grabbing the shopping cart within the store. The Appellant never
leaves the store with any of the property she is alleged to have stolen.
BRIEF OF APPELLANT, ROCHELLE
PAGE 2
SUMMARY OF THE ARGUMENT
The State failed to prove that the Appellant committed theft by legally sufficient
evidence: the record that the Appellant never completed an “appropriation” of the property.
ARGUMENT
Section 31.03(a) of the Texas Penal Code defines the offense of theft:
(a) A person commits an offense of he unlawfully appropriates property with
intent to deprive the owner of property.
Section 31.01(4) of the 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.
In the instant case, the Appellant neither “acquired” nor “exercised control” over the property
she allegedly “appropriated”.
Several salient points arise regarding the issue:
1. The Appellant never left premises under the control of the owner of the property. She
never exited the store. That the Appellant 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
BRIEF OF APPELLANT, ROCHELLE
PAGE 3
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.
The Appellant thus did not “acquire” or “exercise control” over the property in
any meaningful or substantive sense. If, arguendo, the Appellant did manifest an “intent” to
commit theft, the facts show an “attempt” only–not a completed theft. Section 15.01(a), Texas
Penal Code, states:
(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.
The Appellant, whatever the intent, failed to effect the act of theft: neither “acquisition” nor
“exercise of control” reached completion. The enhancement of a theft that would otherwise fall
into misdemeanor classification to a State jail Felony under 31.03(e)(4)(D), Texas Penal Code,
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.
BRIEF OF APPELLANT, ROCHELLE
PAGE 4
supra, requires a completed theft. Id. An “attempt”does not suffice for application of this
enhancement provision. Id. Thus is the evidence against Appellant “legally insufficient” as that
phase is understood in Jackson v. Virginia, 443 U.S. 307(1979)(relevant question is whether
after viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt). See also:
Drichas v. State, 175 S.W. 3d 795,798 (Tex. Crim. App. 2005)(applying Jackson standard).
PRAYER
The Appellant respectfully requests this case be reversed and dismissed.
Respectfully submitted,
__/s/ Clement Dunn_______________
140 East Tyler Street, Suite 240
Longview, Texas 75601
(903) 753-7071 Fax: 903-753-8783
State Bar No. 06249300
BRIEF OF APPELLANT, ROCHELLE
PAGE 5
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this brief was delivered to the Gregg
County District Attorney’s Office, Longview, Texas on this 22nd day of December 2014.
__/s/ Clement Dunn_______________
CERTIFICATE OF WORD COUNT
I hereby certify that a total of 1548 words are included in this brief.
__/s/ Clement Dunn_______________
BRIEF OF APPELLANT, ROCHELLE
PAGE 6