DeLeon v. State

583 S.W.3d 693

Brandon DELEON, Appellant

v.The STATE of Texas, Appellee

NO. 03-18-00268-CR

Court of Appeals of Texas, Austin.

Filed: December 28, 2018

Discretionary Review Refused May 1, 2019

Mr. Michael C. McCarthy, The Honorable Wesley H. Mau, The Honorable Lisa C. McMinn, for Appellee.

Mr. David Hardaway, San Marcos, for Appellant.

Before Chief Justice Rose, Justices Goodwin and Field

OPINION ¹

Scott K. Field, Justice

This appeal from a conviction for theft of a firearm, see Tex. Penal Code § 31.03(a), (e)(4)(C), requires us to determine whether theft of a firearm was a lesser-included offense of burglary of a habitation as alleged in the indictment. Because we conclude that it was not a lesser-included offense, we will reverse the trial court’s judgment of conviction and render a judgment of acquittal.

BACKGROUND

The indictment against Brandon DeLeon for burglary of a habitation alleged the following:

On or about the 8th day of August, 2015, in Hays County, Texas, the Defendant, Brandon Deleon, did then and there, with intent to commit theft or with intent to attempt to commit theft, or commit theft, intentionally or knowingly enter a habitation, without the effective consent of [the victim], the owner thereof....

Near the conclusion of the jury trial, the State requested the inclusion of an instruction allowing the jury to find DeLeon guilty of the alleged lesser-included offense of theft of a firearm. The trial court included the instruction over DeLeon’s objection. The jury found DeLeon not guilty of burglary of a habitation but guilty of theft of a firearm. The trial court sentenced DeLeon to two years in state jail, suspended his sentence, and placed him on community supervision for four years. This appeal followed.

DISCUSSION

In his sole appellate issue, DeLeon contends that the trial court reversibly erred in charging the jury that it could find him guilty of the lesser-included offense of theft of a firearm.

We review alleged jury-charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. See Arteaga v. State , 521 S.W.3d 329, 333 (Tex. Crim. App. 2017) ; Price v. State , 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) ); Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) ; see also Sweed v. State , 351 S.W.3d 63, 69 (Tex. Crim. App. 2011) (holding that the trial court erred in not giving a jury instruction on a lesser-included offense and remanding for the court of appeals to perform a harm analysis under Almanza ); Saunders v. State , 840 S.W.2d 390, 392 (Tex. Crim. App. 1992) (per curiam) (same). Here, DeLeon objected to the jury instruction on theft of a firearm, so "any error that is not harmless will constitute reversible error." See Price , 457 S.W.3d at 440.

We begin, then, by considering whether the trial court erred in submitting an instruction to the jury on theft of a firearm. When deciding whether a lesser-included-offense instruction should have been given, "[t]he first step is to determine whether the requested instruction pertains to an offense that is a lesser-included offense of the charged offense, which is a matter of law." Bullock v. State , 509 S.W.3d 921, 924 (Tex. Crim. App. 2016) ; see Rice v. State , 333 S.W.3d 140, 144 (Tex. Crim. App. 2011) ; Hall v. State , 225 S.W.3d 524, 535 (Tex. Crim. App. 2007) ; Waldron v. State , No. 03-17-00065-CR, 2018 WL 700047, at *11 (Tex. App.—Austin Feb. 1, 2018, pet. ref'd) (mem. op., not designated for publication). As relevant here, "[a]n offense is a lesser included offense if ... it is established by proof of the same or less than all the facts required to establish the commission of the offense charged." Tex. Code Crim. Proc. art. 37.09(a)(1). In analyzing whether an offense is a lesser-included offense, reviewing courts "do not consider what the evidence at trial may show but only what the State is required to prove to establish the charged offense." Cannon v. State , 401 S.W.3d 907, 910 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). Reviewing courts then "compare these elements to those of the potential lesser-included offense ... and decide whether the elements of the lesser offense are functionally the same or less than those required to prove the charged offense." Id. ; see also Tex. Code Crim. Proc. art. 37.09 (defining lesser-included offenses). "An offense is a lesser-included offense of another offense ... if the indictment for the greater-inclusive offense either: 1) alleges all of the elements of the lesser-included offense, or 2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced." Ex parte Watson , 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh'g) (per curiam). If the offense listed in the requested instruction is a lesser-included offense of the offense that the defendant was charged with, the reviewing court must then determine "whether there is some evidence adduced at trial to support such an instruction." Hall , 225 S.W.3d at 535 ; see Bullock , 509 S.W.3d at 925 ; Waldron , 2018 WL 700047, at *12.

We must therefore first "compar[e] the elements of the offense as alleged in the indictment with the elements of the requested lesser offense." State v. Meru , 414 S.W.3d 159, 162 (Tex. Crim. App. 2013). The elements of burglary of a habitation, as alleged in the indictment, are:

(1) DeLeon;

(2) intentionally or knowingly entered a habitation;

(3) without the effective consent of the owner; (4) "with intent to commit theft or with intent to attempt to commit theft, or commit theft."²

See Tex. Penal Code § 30.02(a)(1). The statutory elements of theft of a firearm are:

(1) A person;

(2) unlawfully appropriates property;

(3) with intent to deprive the owner of property; and

(4) the property stolen is a firearm.

See id. § 31.03(a), (e)(4)(C).

The fact that the stolen property was a firearm is an element of this theft because it makes the offense a state-jail felony and thus determines the maximum possible punishment. See id. § 31.03(e)(4)(C); see also Ring v. Arizona , 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ("If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt."). Indeed, because the value or nature of the stolen property always determines the punishment range of a theft offense, see Tex. Penal Code § 31.03(e), the value or nature of the stolen property is always an essential element of the offense, as are other circumstances surrounding the theft that affect the offense level. See Price , 457 S.W.3d at 442 ("Consider, for example, the allegation of two prior convictions for driving while intoxicated as a required element in the offense of felony driving while intoxicated, or the allegation of the value of stolen property above a misdemeanor amount as a required element of felony theft. Both are required elements...."); Sowders v. State , 693 S.W.2d 448, 450 (Tex. Crim. App. 1985) ("The State must prove at trial that the amount of money stolen satisfies the jurisdictional requirement of the State’s pleading."); Sanders v. State , 664 S.W.2d 705, 709 (Tex. Crim. App. 1982) (op. on reh'g) ("Thus, under our decisions interpreting [ Texas Penal Code section 31.03 ], the value of the property stolen is an essential element of the offense when it is made the basis of punishment and theft from the person is an essential element of the offense when it is made the basis of punishment. Put another way, the ‘offense’ of theft as defined by statute will always include one of the provisions of [the predecessor to Texas Penal Code section 31.03(e) ]."); Ramirez v. State , 422 S.W.3d 898, 901 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) ("Under Texas law, the value of the property taken is an essential element of the offense."); see also Gant v. State , 606 S.W.2d 867, 871 (Tex. Crim. App. [Panel Op.] 1980) ("Thus, we agree with appellant, that ... the prior theft offenses, as jurisdictional elements of the offense alleged, must be included in the body of the main charge before the jury is authorized to make a general finding of guilt, and we so hold."); Diamond v. State , 530 S.W.2d 586, 587 (Tex. Crim. App. 1975) ("The addition of the prior theft convictions in the instant case created a new offense of the grade of felony."); Hairston v. State , No. 03-17-00140-CR, 2017 WL 3378895, at *1 (Tex. App.—Austin Aug. 4, 2017, no pet.) (mem. op., not designated for publication) (" ‘It has been uniformly held that prior theft convictions alleged to elevate a misdemeanor theft to a felony-level offense are jurisdictional elements of a new, felony offense, rather than simply punishment enhancements.’ ") (quoting State v. Reyes , 310 S.W.3d 59, 61 (Tex. App.—El Paso 2010, pet. ref'd) ); Moore v. State , 916 S.W.2d 537, 539 (Tex. App.—Dallas 1995, no pet.) ("Elevating a misdemeanor theft to a felony theft by use of previous theft convictions does not enhance punishment, but creates a new offense and vests the district court with jurisdiction. Previous theft convictions that elevate misdemeanors to felonies are jurisdictional elements of the offense alleged.") (citation omitted); Carter v. State , 804 S.W.2d 326, 327 (Tex. App.—Waco 1991, no pet.) ("Because the prior theft offenses are elements of the offense, that portion of the indictment alleging them should be read to the jury at the beginning of the guilt-innocence phase of the trial, evidence of them should be permitted during that phase, and the guilt-innocence charge must require the jury to find the prior theft offenses before returning a general guilty verdict of...