Opinion issued Ju ly 28 , 2015

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 14 - 00605 - CR

——————————— ANDRETRELL PALMER , Appella nt

V. THE STATE OF TEXAS , Appell e e On Appeal from the 183rd District Court

Harris County, Texas T rial Court Ca se No. 1402466
O P I N I O N Andretrell Palmer appeals his conviction for theft of copper. 1 In one issue, he contends that the trial court erred by not includ ing in the jury charge an

1 T EX . P ENAL C ODE A NN . § 31.03 (a), (e)(4)(F)(iii) (West 2011)
.2

instruction permitting the jury to find Palmer guilty of attempted theft only. We affirm
. Background The Houston Police Department assigned Officer R. A. Arri a ga to surveil a parking lot in downtown Houston in response to a series of thefts in the area. He noticed a man reach into a pickup truck parked in the lo t and remove a cardboard box. He later identified the man as Palmer. Officer Arri a ga saw Palmer take the box, walk away from the truck , and si t down near the edge of the lot
. Officer Arri a ga then radio ed for backup officers. Officer W. A. Montgomery respon ded to Officer Arriaga’s radio call
. Of ficer Montgomery arrested Palmer, who was still sit ting down with the box. Officer Montgomery discovered that the box con tained copper fittings. The truck belonged to Robert Reynolds, who was working on the plumbing
a nd air conditioning of a nearby office building. He had temporarily left several items related to this project in the back of his pickup truck, including a box of copper fittings . He identified the box recovered from Palmer as the same box of fittings that he had left in his truck.3

At trial, Palmer requested that a jury

- charge instruction on attempted theft 2 as a lesser

- included offense of theft
. The trial court denied the request, and the jury convicted Palmer of theft. Palmer timely appealed
. Attempted - Th eft Instruction Palmer contends that the jury charge should have included an instruction on attempted theft. A. Standard of r eview

“ In determining if the jury should be charged on a lesser offense, this Court applies a two

- step analysis. ” Segundo v. State , 27 0 S.W.3d 79, 90 (Tex. Crim. App. 2008)
. “ First, we decide if the offense is a lesser

- included offense of the charged offense
. . . .” Id. This “is a question of law” and the standard of review is de novo
. Hall v. State , 225 S.W.3d 524, 535 (Tex. Crim. App. 2007)
.

“ The second prong of the test then requires an evaluation to determine whether some evidence exists that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser offense .” McKinney v. State , 207 S.W.3 d 366, 370 (Tex. Crim. App. 2006) . “ We review the trial court ’ s decision regarding including a lesser

- included offense in the jury charge for abuse of discretion .” Brock v. State , 295 S.W.3d 45, 49 (Tex. App.

— Hou ston [1st Dist.] 2009, pet. ref’ d)
. “ In maki ng this determination, this Court should review all of the

2 T EX . P ENAL C ODE A NN . § 15.01 (West Supp. 2014 ).4

evidence presented at trial. ” Bignall v. State , 887 S.W.2d 21, 23 (Tex. Crim. App. 1994) . “ Anything more than a scintilla of evidence ” that the defendant is guilty of the lesser

- included offense bu t not guilty of the charged offense “ is sufficient to entitle a defendant to a lesser charge. ” Id. ; see Segundo , 270 S.W.3d 90

– 91
. B. Attempted theft is a lesser - included offense of theft Palmer’s requested instruction passes the first prong of the test becau se attempted theft is a lesser

- included offense of theft. See T EX . C RIM . P ROC . C ODE A NN . art. 37.09 (4) (West 20 06 ) . For the second prong, Palmer contends that there is evidence that he attempted but failed to appropriate the box of copper parts. Appropriat ion is an element of theft. T EX . P EN AL C ODE A NN . § 31.03 (West 2011 )
. The Penal Code provides the following definition: (4) “Appropriate” means: (A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, wh ether to the actor or another; or (B) to acquire or otherwise exercise control over property other than real property. Id. § 31.01 (4) ( West Supp. 2014 )
. Palmer asserts that the following evidence provides more than a scintilla of evidence that he attempted but failed to appropriate the b ox : “[Palmer] did not carry off the box of fittings to another location. He took the box and sat down no more than 10 to 15 feet away from Reynold’ s truck. [Pal mer] did not handle the5

contents of the box. He made no attempt to evade [the police]
. ” In addition,

“ [w] hen the backup officer arrested [Palmer] , he was calmly seated on the ground about a foot away from the box o f fittings.” Further, “ Reynold’s prop erty was returned to him. ” Accordingly, Palmer asserts that “there is some evidence to suggest that [Palmer] did not ‘appropriate’ the copper fittings in the sense of ‘depriving the owner permanently or for a substantial peri od of time.’” These facts provide no evidence that Palmer tried but failed to appropriate the box. A ny “ exercise [ of ] control over property other than real property ” is an appropriation regardless of the duration of that control. See id. ; see also Patterson v. State , No. 09

- 12

- 00576

- CR, 2014 WL 1778373, at *4 (Tex. App.

— Beaumont Apr. 30, 2014 , pet. ref’d ) (mem. op., not designated for publication) ( defendant on trial for theft of copper wire was not entitled to attempted

- theft instruction because

“ [w] hen Officer Bray saw Patterson with the roll of wire in his hand, Patterson was exercising control over it
. ” ); Hicks v. State , No. 12

- 13

- 00158

- CR, 2014 WL 1922619, at *3 (Tex. App.

— Tyler May 14, 2014, no pet.) (mem. op., not designated for publication) ( holding that d efendant who stole jewelry from store but did not leave store was not entitled to attempted

- th eft instruction because “the act of carrying away or removing property is not an element of statutory theft.” ); Ragan v. State , No. 12

- 13

- 00183

- CR, 2013 WL 6797734, at *3 (Tex. App.

— Tyler Dec. 20, 2013, no pet.) (mem. op., not designated for publication) ( “ When6

Appellant and his codefendant disconnected the transformers, they exercised control over the property, which is consistent with the penal code ’ s definition for ‘appropriate.’ There is no evidence that if Appellant was guilty, he was gu ilty only of ‘a ttempted theft.’”); Cantrell v. State , No. 05

- 92

- 01220

- CR, 1994 WL 24386, at *2 (Tex. App.

— Dallas Jan. 31, 1994, no pet.) (mem. op., not designated for publication) (“[T] o have the issue of attempted theft submitted to the jury, the evidence must show that appellant intended to take the necklace, but failed.
. . . Although appellant argues that he never had full possession of the necklace, a temporary deprivation with the requisite intent to permanently deprive sufficiently establishes the crime of theft. ”) ; Malone v. State , No. 05

- 05

- 01159

- CR, 2006 WL 1727727, at *2 (Tex. App.

— Dallas June 26, 2006, pet. ref’ d) (mem. op., not designated for publication) (holding that d efendant was not entitled to attempted

- theft instruction because he “had hooked the trailer to his van and had moved the trailer, although only slightly. ”)
. Palmer exercised control over the box when he removed the box from the pickup truck. Although he was quickly arrested, his brief exercise of control was an appropriation. Thus, there is no e vidence that Palmer attempted the theft of, but failed to appropriate, the box.7 Conclusion The trial court did not abuse its discretion by refusing to include an instruction on the lesser

- included offense of attempted theft because there is no evidence tha t, if Palmer is guilty, he is only guilty of attempted theft. Accordingly, we overrule his single issue on appeal and affirm the judgment of the trial court.

Harvey Brown Justice Panel consists of Chief Justice Radack and Justices Brown a nd Lloyd. Publish. T EX . R. A PP . P. 47.2(b).