Autumn Lynn Hickman v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00202-CR
___________________________
AUTUMN LYNN HICKMAN, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 43rd District Court
Parker County, Texas
Trial Court No. CR18-0531
Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellant Autumn Lynn Hickman was convicted of theft of property. On
appeal, she argues that the trial court erred by refusing a jury instruction on the lesser-
included offense of attempted theft. She cites her statements to police that she had a
change of heart and left the merchandise just inside the store; appellant argues that these
statements establish attempted theft as a rational alternative for the jury and that a
lesser-included-offense instruction was therefore mandatory.
But appellant’s statements did nothing to contradict the undisputed facts that
she took a cart of goods past the cash registers, through an electronic theft-prevention
system, and out a first set of doors that led into an entryway. These facts would
establish a completed theft, and regardless of whether she abandoned the merchandise
before exiting through a second set of doors, her statements did not bring attempted
theft into the realm of rational alternatives. The instruction was therefore properly
denied, and we affirm.
I.
Leanna Combs was working as a Walmart loss-prevention officer on
December 23, 2017, when she saw appellant pushing a full shopping cart. The type of
items appellant had in her cart raised a red flag for theft, so Combs contacted her
manager Donna Gillespie and began keeping an eye on appellant. Combs followed as
appellant circled from one end of the store to the other and then lingered near the front,
just beyond the cash registers. Appellant then pushed the cart past the electronic theft-
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prevention alarm system and through the first set of doors, headed for the second set
of doors that led outside. Combs testified that appellant then exited the store with the
cart, and surveillance video captured appellant exiting the store with Combs in pursuit.
Gillespie was waiting outside. Gillespie testified that she stopped appellant on
the sidewalk and asked to see a receipt for the items in her cart. According to Gillespie,
appellant seemed nervous, and she began rummaging through her purse, ostensibly
searching for the receipt. But rather than producing a receipt, appellant grabbed her
purse and headed for a white SUV in the parking lot, leaving the cart behind. Gillespie
photographed the SUV’s license plate as appellant sped away. Gillespie testified that
she did not give appellant permission to take the property and that Walmart considers
it theft when items are taken beyond the cash registers and the alarm system.
Officer Richard Lukowsky received a call and came to Walmart to collect
evidence, including photographs of appellant and a receipt totaling the value of the
goods in appellant’s cart, which was $441.94. He ran the SUV’s license plate, and the
system returned an address north of town. The next day—Christmas Eve—Officer
Lukowsky went to the address, but he did not find the white SUV. As he drove back
to town, though, he saw the SUV. When he pulled it over, he found two men in the
front and appellant in the back.
As recorded on the officer’s body camera, appellant initially denied that, on the
day before, she had even been in the town where the Walmart is located. But when
Officer Lukowsky told appellant he had photographs of her standing in the aisles of the
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Walmart, she admitted that she had been there. Appellant then made the statements
that are at the center of this appeal: she agreed that she intended to steal the
merchandise and took it past the first set of doors, but she said that she abandoned the
merchandise before the second set of doors; according to appellant, she had a change
of heart, left the cart, and exited the store. She believed that no theft had occurred.
Officer Lukowsky warned her that nonetheless, a warrant would likely be issued for her
arrest in the coming weeks, and he ended the stop.
At the charge conference, appellant argued that she was entitled to an instruction
on the lesser-included offense of attempted theft. As support, appellant relied on her
statements to Officer Lukowsky. She asserted that these statements amounted to more
than a scintilla of evidence that she had merely attempted theft, not completed it. The
trial court denied the requested instruction and charged the jury on theft.
After the close of the evidence, the jury found appellant guilty of theft of
property valued at less than $2,500 with two prior theft convictions, 1 a state-jail felony.
See Tex. Penal Code Ann. § 31.03(e)(4)(D). The jury assessed punishment at four-and-
a-half years’ confinement.
II.
In her sole issue on appeal, appellant contends that the trial court erred by
refusing to submit the lesser-included offense of attempted theft to the jury. She
Appellant stipulated to these convictions.
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observes that in order to be entitled to a lesser-included-offense instruction, a defendant
need only produce something more than a scintilla of evidence that indicates the lesser-
included offense. According to appellant, her video-recorded statements to Officer
Lukowsky—especially her statement that she abandoned the cart just before exiting the
store—amount to more than a scintilla of evidence tending to show that she merely
attempted theft. We disagree.
As we explain, even under the version of events that appellant gave to Officer
Lukowsky, a theft had already been completed by the time she abandoned the cart. Her
statements to the officer therefore do not provide the measure of proof necessary to
support an instruction on attempted theft.
We use a two-step analysis to determine whether an appellant was entitled to a
lesser-included-offense instruction: (1) Are the elements of the lesser-included offense
included within the proof necessary to establish the charged offense’s elements? (2) Is
there evidence in the record from which a jury could find the defendant guilty of only
the lesser-included offense? State v. Meru, 414 S.W.3d 159, 161 (Tex. Crim. App. 2013);
Hall v. State, 225 S.W.3d 524, 528, 535–36 (Tex. Crim. App. 2007); Rousseau v. State, 855
S.W.2d 666, 672–73 (Tex. Crim. App. 1993).
The first step in the lesser-included-offense analysis is a legal question and does
not depend on the trial evidence. Hall, 225 S.W.3d at 535. In this case, the first step is
easily established because, as a matter of law, attempted theft is a lesser-included offense
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of the charged offense of theft. Tex. Code Crim. Proc. Ann. art. 37.09(4); Bullock v.
State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016).
Rather, the parties only dispute the second step. Under the second step, the
record must contain some evidence that would permit a jury to rationally find that the
appellant is guilty only of the lesser offense. Hall, 225 S.W.3d at 536; Salinas v. State,
163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. In other
words, the evidence must establish the lesser-included offense as “a valid, rational
alternative to the charged offense.” Hall, 225 S.W.3d at 536. This is a fact
determination based on all the evidence presented at trial. Meru, 414 S.W.3d at 163. If
anything more than a scintilla of evidence raises a fact issue about whether the
defendant is guilty only of the lesser offense—regardless of whether the evidence is
weak, impeached, or contradicted—we must conclude that the trial court erred by
failing to give an instruction on the lesser-included offense. See Ritcherson v. State, 568
S.W.3d 667, 671 (Tex. Crim. App. 2018); Hall, 225 S.W.3d at 536.
Although “this threshold showing is low,” it is not enough that the jury may
disbelieve crucial evidence pertaining to the greater offense. Sweed v. State, 351 S.W.3d
63, 68 (Tex. Crim. App. 2011). There must be some evidence directly germane to the
lesser-included offense for the finder of fact to consider before an instruction on a
lesser-included offense is warranted. Id. This standard may be satisfied if some
evidence refutes or negates other evidence establishing the greater offense or if the
evidence presented is subject to different interpretations. Id.
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We therefore assess whether there is some evidence directly germane to
attempted theft. A person commits a theft if she unlawfully appropriates property with
intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a).
Appropriation of property is unlawful if it is without the owner’s effective consent. Id.
§ 31.03(b). “Appropriate” means to acquire or otherwise exercise control over property
other than real property. Id. § 31.01(4)(B). A person commits a criminal attempt if,
with specific intent to commit an offense, she does an act amounting to more than mere
preparation that tends but fails to effect the commission of the offense intended. Id.
§ 15.01(a).
Appellant argues that her statements to Officer Lukowsky supply some evidence
directly germane to attempted theft. To be clear, though, appellant’s statements to the
officer did not tend to negate several aspects of the State’s case; the State proved the
following facts that appellant left essentially undisputed:
• Appellant gathered several hundred dollars’ worth of Walmart property
into a cart;
• She circled the store and headed to the front;
• She then pushed the cart past the cash registers, the theft-prevention alarm
system, and the first set of doors, headed for the second set of doors,
which led outside;
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• As appellant admitted, she did all this with the intent to deprive Walmart
of the property.
The only respect in which her statements tended to contradict the loss-
prevention officers’ testimony and the surveillance video was with regard to what
occurred after she went through the first set of doors. According to appellant’s
statements, she abandoned the cart just before exiting the second set of doors.
According to Walmart employees and surveillance footage, she took the cart outside
and was stopped there.
However, even accounting for this contradiction, appellant has left undisputed a
set of facts that establishes a fully completed theft. There is no shortage of authorities
in which courts have found a completed theft under circumstances similar to the
undisputed facts here. For instance, in one case, a Walmart loss-prevention officer saw
the defendant take a purse, gather merchandise into that purse, and carry the purse past
the cash registers. Thomas v. State, No. 02-15-00216-CR, 2016 WL 3889146, at *1 (Tex.
App.—Fort Worth July 14, 2016, no pet.) (mem. op., not designated for publication).
She was apprehended inside the store. Id. We held the evidence sufficient to establish
theft, reasoning that by carrying the merchandise past the point where she had
Walmart’s permission to take it, the defendant had exercised control over the
merchandise with intent and without consent. Id. at *3. In another case, the defendant
removed electronics from their packaging and placed them in his pockets, and as he
was leaving the retail store, an employee stopped him in the vestibule between the first
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and second sets of doors. Segeada v. State, No. 09-11-00452-CR, 2012 WL 4470889, at
*2 (Tex. App.—Beaumont Sept. 26, 2012, no pet.) (mem. op., not designated for
publication). The court held the evidence sufficient in that the defendant “walked past
the registers and the security devices near the store’s exit” with the electronics in his
pockets and “made no effort to pay for them.” Id. In still another case, the court held
the evidence sufficient to show a completed theft where a defendant pushed a cart full
of goods by Walmart’s cash registers, past an electronic security system, and through
the first set of doors before being apprehended just shy of the second set of doors.
Barrett v. State, No. 01-10-00824-CR, 2012 WL 1649855, at *1, *3 (Tex. App.—Houston
[1st Dist.] May 10, 2012, no pet.) (mem. op., not designated for publication). The court
held that the State was not required to prove that the defendant actually made it through
the final exit in order to establish a theft. Id. at *3. And in Hicks v. State, similar
principles were applied to uphold the denial of a lesser-included-offense instruction on
attempted theft in a retail store. See No. 12-13-00158-CR, 2014 WL 1922619, at *3
(Tex. App.—Tyler May 14, 2014, no pet.) (mem. op., not designated for publication).
Here, regardless of appellant’s contradictory evidence, proof of a completed
offense remains intact and undisputed. Appellant admitted her intent to deprive
Walmart of property. She did not offer any evidence tending to dispute the State’s
proof that she exercised control over the property in areas where she lacked Walmart’s
consent to take it: beyond the cash registers where she should have paid for the
property, beyond the security system designed to prevent customers from taking
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property without consent, and beyond the first set of doors leading outside. With the
greater offense already complete, appellant’s statement that she left the merchandise
just short of the outer threshold would not tend to show the lesser offense of criminal
attempt. There is thus no evidence to establish attempted theft as a valid, rational
alternative to the charged offense of theft. See Hall, 225 S.W.3d at 536. The trial court
therefore correctly refused the instruction on attempted theft. We overrule appellant’s
sole issue.
III.
We affirm the trial court’s judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 23, 2020
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