### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

O N REMA N D

NO. 03
- 15
- 00332
- CR

Terri Regina Lang, Appellant

v. The State of Texas, Appellee

FROM THE 424TH DISTR ICT COURT OF BURNET COUNTY NO. 42185, THE HONOR ABLE EVAN C. STUBBS, JUDGE PRESIDING

O P I N I O N
A jury convicted appellant Terri Regina Lang of the offense of organized retail theft involving merchandise valued at $500 or more but less than $1,500, see Tex. Penal Code § 31.16(b)(1), (c)(3), and the trial court a ssessed her punishment at confinement for 20 months in a state jail facility, see id. §§ 31.16(c)(3), 12.35. On original submission, this Court rejected appellant’s challenge to the sufficiency of the evidence supporting her conviction, concluding that th e organized retail the ft statute permitted conviction of a person engaged in ordinary shoplifting acting alone. Lang v. State , No. 03

- 15

- 00332

- CR, 2017 WL 1833477, at *3

– 7 (Tex. App.

— Austin May 5, 2017) (mem. op., not designated for publication), rev’d an d remanded , 561 S.W.3d 174 (Tex. Crim. App. 2018).2 On discretionary review, the Court of Criminal Appeals disagreed and concluded that “the organized retail theft statute was not intended to apply to the conduct of an ordinary shoplifter acting alone” and, theref ore, “requi re s proof of conducting, promoting, or facilitating some activity distinct from the mere activity inherent in the ordinary shoplifting of retail items by a single actor.” Lang v. State , 561 S.W.3d 174, 183 (Tex. Crim. App. 2018). Be cause no

su ch evidence w as presented in this case, the court held that the evidence was legally insufficient to support appellant’s conviction for the offense of organized retail theft, reversed our judgment, and remanded the case for this Court “to consid er whether the judgmen t of conviction should be reformed to any lesser included offense.” Id. at 184. On remand, we will reverse the trial court’s judgment of conviction and render an acquittal.

DISCUSSION 1
When evidence has been found to be insuffici ent to supp ort a convi ct ion, reformation of the judgment of conviction to a lesser

- included offense is required when: ( 1) in the course of convicting appellant of the greater offense, the jury necessarily found every element needed to convict the appellan t of the le sser - includ ed offense, and ( 2) the evidence that was presented at the appellant’s trial is sufficient to support a conviction on that lesser

- included offense. Rabb v. State , 483 S.W.3d 16, 21 (Tex. Crim. App. 2016); Thornton v. State , 425 S.W.3 d 289, 299

– 300 (Tex. C ri m. App. 2014).

1 The factual background of this case was fully disc u ssed in the p rior opinion of this Cour t , see Lang v. State , No. 03

- 15

- 00332

- CR, 2017 WL 1833477, at *1 (Tex. App.

— Aust in May 5, 20 17) (mem. op., not designated for publication), rev’d and remanded , 561 S.W.3d 174 (Tex. Crim. App. 2018), as well as in the o pinion of the Court of Crimin al Appeal s , see Lang v. State , 561 S.W.3d 174, 176

– 77 (Tex. Crim. App. 2018), and will no t be repe ate d here

.3 As an initial matter, we observe that when the evidence is found to be insufficient for the convicted offense, this Court’s authority to reform a judgment of conviction is limited to lesser

- included offenses of the offense of conviction. See Thornton , 425 S.W.3d at 298

– 99 ( observing that appellate courts “should limit the use of judgment reformation to those circumstances when what is sought is a conviction for a lesser offense whose commission can be established fr om facts th at the jury a ctually found ”) (emphasis added); cf. Arteaga v. State , 521 S.W.3d 329, 340 (Tex. Crim. App. 2017) (recognizing that rationale for Bowen and its
progeny is that “ a defendant should not receive the unjust windfall of an outright acqu ittal when there is le ga lly sufficient evidence to prove that he is guilty of a lesser

- included offense ”) (emphasis added). Thus, before we address the two inquiries relevant to determin ing whether to reform the judgment of conviction in this case , see Ra bb , 483 S.W .3d at 21 ; Th ornton , 425 S.W.3d at 299

– 300 , we must examine whether the proposed offenses are lesser

- included offenses

. 2 In our analysis, we consider judgment reformation for two offenses: attempted organized retail theft and theft of property

.

2 While not expressl y stated by the Court of Criminal Appeals as part of the judgment

reformation analysis, the det e rmination of whether the offe nse for wh ich a r eformed judgment of conviction is sought is a lesser

- included offense of the conv ict ed offense is necessarily part of the analysis , as a trial court has no jurisdiction to convict a defendant of an offense not charged in th e charging instr ument unle ss that offense is a lesser

- included offense of the crime charged. See In re D .D. , 101 S .W. 3d 695, 696 (Tex. App.

— Austin 2003, no pet.); Hall v. State , 81 S.W.3d 927, 929 (Tex. App.

— Dallas 2002), aff ’ d , 225 S.W.3d 5 2 4 (Tex. Crim. App. 2007); McL eod v. Sta te , 56 S.W.3d 704, 708 (Tex. App.

— Houston [14th Dist.] 2001, no pet.); see, e.g . , Ex part e S ewell , 606 S.W.2d 924, 925 (Te x. Crim. App. 1980) (concluding that conviction for theft was void because offense was not les s er - included o ffense of burgla ry charged in ind ictment); Houston v. State , 556 S.W.2d 345, 347 (Tex. Crim. App. 1977) ( concluding th at conviction for rape was voi d because offense was not lesser

- included offense of burglary with intent to commit rape charg e d in indictme nt); Murray v. S tate , 261 S.W.3d 255, 260

– 61 (Tex. App.

— Houston [14th Dist.] 2008), aff’d , 302 S.W.3d 874 (Tex. Cri m. App. 2009) (concluding that co nviction for forgery of w riting was void because offense was not lesser

- included offense of of f ense of makin g false statemen t to obtai n credi t charged in indictment); Hall , 81 S.W.3d at4

Attempte d Organized Re tail Theft

A person commits the offense of criminal attempt “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 inten ded.” Tex. Penal Code § 15.01 (a). As a matter of law, criminal attempt is a lesser

- included offense of a completed offense. See Tex. Code Crim. Proc. art. 37.09(4) ( “An offense is a lesser included offense if it consists of an attempt to commit the off e nse charge d or an othe rwi se included offense.” ). However, when considering judgment reformation, appellate courts must still analyze whether, in the course of convicting the appellant of the greater offense, the jury necess arily found every element neces s ary to con vict the
app ell ant for the lesser

- included offense

. Rabb , 483 S.W.3d at 22 ; see Thornton , 425 S.W.3d at 300

– 01

. The parties agree , though for different reasons, that reformation of the judgment of conviction in this cas e to the lesser

- included offense of attempted o rga nized retail theft is not appropriate

. We agree.

N o evidence in this case demonstrates that, with specific intent to commit “some activity undertaken with respect to stolen retail merchandise that goes beyon d the conduct inheren t in ordinary shoplift ing ,” see Lang , 561 S.W.3d at 183 , appellant committed an act that tended but fail ed to effect the commission of organized retail theft. That is, there i s no evidence

931 ( concluding that judgme nt o f co nvi ction for aggravated assault b y threat was void because offense was not lesser

- included offense of murder charged in indictmen t ). If the tr ial court lacks jurisdicti on to c onvict , the judgment of conviction rendered is void. See Sewell , 606 S. W.2d at 925 ; Houston , 556 S.W.2d at 347; Murray , 261 S.W.3d at 260

. Consequently, an appellate court could not render such a judgment. S ee Tex. R. Ap p. P. 43.2 (c) (a uthorizing court of appeals to reverse trial court ’ s judgment in whole or in part and “ re nder the ju dgment that the trial court sh ould have rendered ”), 43.3 ( requiring court of appeals to “ render the judgment that the trial co u rt should hav e rendered ” when reversing trial court’s judgment).5

in this case that appellant’s acti ons tended but failed to effect the commission of any act ivity

“ distinct from the mere activity inherent in the ordinary shoplifting of retail items by a single
actor .” See id. Consequently, t he re c ord does not support a fi nding that in the course of

con victing app ellant of organized r etail theft , the jury nec essarily found every element needed to convict appellant of attempted organized retail theft

. Further , the evidence that was presented at appellant’s trial was not sufficient to support a conviction for attem pted organi zed retail theft.
Because t he an swe r to both judgment

- reformation inquiries is no , we are not authorized to reform the judgment of conviction in this case to reflect a conviction for attempted organized retail the ft. See Thornton , 425 S.W.3d a t 300

.
The ft of Prope rty

Appellant conced es that, viewed in the light most favorable to the prosecution, the evidence

— which showed that she stole items from HEB by placing them in her reusable shopping bag, failing to pay for those items in the checkout line, and then attemp ting to leave the
stor e w hile still possessing the item s

— is sufficient to show that she committed the offense of theft of property

. See Tex. Penal Code § 31.03(a). The question, however, is whether thef t of
pr operty is a lesser

- incl uded offens e of organi zed retail theft.

To de termine whether an offense qualifies as a lesser

- included offense, we employ the cognate

- pleadings approach. Bien v. State , 550 S.W.3d 180, 185 (Tex. Crim. App.), cert. denied , 139 S. Ct. 64 6 (2018); see Hall v. State , 225 S.W.3d 524, 535 (Tex. Crim. A pp. 2007). Under this approach, we compare the elements of the greater offense as pled to the statutory elements of the potential lesser

- included offense in the abstract. Safian v. State , 543 S.W.3d 216, 220 ( Tex. Crim. App. 2018); Hall , 225 S.W.3d at 5 35. We ask “whether the6

lesser

- included offense is included within the proof necessary to establish the offense charged.” Safian , 543 S.W.3d at 219

– 20 (quoting Rice v. State , 333 S.W.3d 140, 1 44 (Tex. Crim. App

. 2011)); H all , 225 S. W.3d at 536; see Tex. Cod e Crim. Proc. art. 37.09(1) (“An 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[.]”) . Th is analysis is a questi on of law and does
not de pend on the evidence to be produced at trial. Safian , 543 S.W.3d at 220; Ex p arte Castillo , 469 S.W.3d 165, 169 (Tex. Crim. App. 2015); Rice , 333 S.W.3d at 144.

An offense is a lesser

- inc luded offense of a nother offe nse if the i ndictment for the char ged 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 purpose s of providi ng notice) from which all of the elements of the lesser

- included offense may be deduced.” Safian , 543 S.W.3d at 220 (quoting Ex parte
Watson , 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g) (per curi am) ); Rice , 333 S. W.3d at 144. “[T] he elemen t s of the less er - includ ed offense do not have to be pleaded in the indictment if they can be deduced from facts alleged in the indictment.” Safian , 543 S.W.3d at 220 (quoting State v. Meru , 414 S.W.3d 159, 162 (Tex. Crim. App. 2 013)); accord Bien , 550 S.W

. 3 d at 185

– 86.

When t her e are allegations in the indictment that are not identical to the elements of the lesser offense, a court should apply the functional

- equivalence test to determine whether elements of the lesser offense are functionally t he same o r less than th ose requi red to prove the charged offense. Safian , 543 S.W.3d at 220; Cavazos v. State , 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); see Bien , 550 S.W.3d at 186. An element of the lesser

- included offense is functio nally equivalent t o an alle g a tion in the charged g rea ter offense if the statutory elements of7

the lesser offense can be deduced from the elements and descriptive averments in the indictment for the charged greater offense. Safian , 543 S.W.3d at 220; McKit han v. State , 324 S.W.3d 58 2 , 588

– 89 (Tex . Crim. A pp. 2010).

As charged in this case, a person commits the offense of organized retail theft “if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possess es, conceals, [or] stores .

. . stolen re tail merc han dise.” Tex. Penal Code § 31.16(b)(1). Theft of property occurs when an individual unlawfully appropriates property with intent to deprive the owner of the property. Id. § 31.03(a); see Johnson v. State , 560 S.W.3 d 224, 227 (Tex

. Crim. App. 2 018). In co mparing the statutory elements of theft with the elements of the charged offense of organized retail theft, several elements of theft are not included in the alleged organized retail theft: unlawful appropriation, t he int ent to de p rive the

owne r of prop er t y, and the identity of the owner of the property. We must determine whether these missing elements can be deduced from the elements of the charged offense or the descriptive averments in the indictment

.

“Appropri ate” i ncludes b o th acquiring or otherw is e exercising control over property. 3 Tex. Penal Code § 31.01(4)(B). Appropriation is unlawful when (1) it is without the owner’s effective consent; or (2) the property is stolen, and the actor appropriates the property

3 The Court of Criminal Appeals has recognized the two dist inc t ways one can “appropriate” p roperty and discussed the misunderstanding of the two: There is a continuing misconception amon g the bench an d bar that the w ord “approp riate” means (or at least connotes) some sort of “taking” or “transfer” of pro perty (o the r than real property). It doe s not. “Appropriate” means any “exercise of control over ” the personalty in question; it is more akin to “poss ession” than to a “transfer ” unde r the 1974 penal code. McClain v. State , 687 S.W.2d 350, 353 & n.7 (Tex . Crim. App . 1985). Appellant’s argument s in her brief address only the acquisition of the merchandise.8

knowing it wa s stolen by another. I d. § 31.03(b). Given the statutory definition of “appropriate,” when the State shows that a person knowingly exercised control over stolen property, the State demonstrates theft. Chavez v. State , 843 S.W.2d 586, 588 (Tex. Cri m. A pp . 1992); Mc Clain v. St a te , 687 S.W.2d 350, 353 (Tex. Crim. App. 1985).

“Functional equivalent” means “that the language of the indictment explicitly operates to commit the State to prove the greater offense in such a way that it will also

necessa ril

y p rove the el ement req uir e d by the statute defining the lesser offense.” Meru , 414 S.W.3d at 170 ; see McKithan , 324 S.W.3d at 593 (“The relevant inquiry is not what the evidence may show but what the State is required to prove to establish the charged of f en se.”).
As indicted her e , to prove organized retail theft, the State was required to prove that appellant conducted, promoted, or facilitated an activity in which she received, possessed, concealed, or stored stolen retail merchandise. T ex. Penal Code § 31.16(b )(1). When th e St a te is requ ired to prove that a person receives, possesses, conceals, or stores stolen retail merchandise, the State
must necessarily prove that the person “exercised control” over stolen property. See Stewart

v. State , 44 S.W.3 d 582, 58 8

– 89 ( Tex. Cri m. A p p. 2001) ( “Anyone who is in a position to take some action that deprives the owner of property is in a position to exercise control.”).

Moreover, as the Court of Criminal Appeals has recognized,
It is logically apparent that one way to pr o ve the a ctor had “knowl edge” that his exercise of control over property was “without the owner’s consent” is to prove that at some point during his exercise of control he “knew it was stolen by another.” Thus, knowing the property possessed “was sto len b y another ” is merely a s ubset of knowing the possession is “without the owner’s consent.”

McClain , 687 S.W.2d at 354 (internal footnote omitted) (emphasis omitted ); see id. at 354 n.15 (“It simply cannot be argued with any logic that a perso n who exe rcise s control ove r property he9

knows was stolen by another does not know his exercise is without the true owner’s consent.”). So, when the State is required to prove that a person receives, possesses, conceals, or stores stolen retail merchandis e , the St ate m u st neces sari l y prove th at the person “exercised control” over the property without the owner’s consent. S ee Chavez , 843 S.W.2d at 588 (“Receiving property from another, knowing it to be stolen by him, establishes the offense [of theft] beca u se it is

. . . a knowi ng e x ercise of control without consent of the owner.”).

Thus, the alleged conduct of conducting, promoting, or facilitating an activity in which the person (appellant) receiv e d , possess e d , conceal ed , or stor e d stolen retail merch a ndise is the f unctiona l equi v alent of the theft element of unlawful appropriation of property

— both exercising control over stolen property as well as exercising control over property without the owner’s effective consent.

Another theft element missing f r om the i ndict m ent for organi z ed retai l theft is the intent to deprive the owner of property. “A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desir e to enga ge in the cond uct or cause th e result.” Tex. Penal Code § 6.03(a). “Deprive” is statutorily defined and means “to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of t he prope rty i s lost to the o w ner.” I

d. § 31.01(2)(A); Taylor v. State , 450 S.W.3d 528, 535 (Tex. Crim. App. 2014) (“An intent to deprive an owner of his property means an intent ‘to withhold the property from the owner permanently or for so extended a pe r iod of t ime t h at a maj or por t ion of t he value or enjoyment of the property is lost to the owner.’” (quoting Penal Code definition of deprive)).

Organized retail theft does not explicitly require the intent to deprive the owner of property. However, the statute (and the i ndictmen t in t h is case) explicitly requires that the10

defendant intentionally conduct, promote, or facilitate an activity that involve s stolen property.
See Tex. Penal Code § 31.16(b)(1); Lang , 561 S.W.3d at 181 (“By its use of the past part i ciple of
stea l (e.g., ‘s tole n ’), the statute indicates that whatever ‘activity’ is covered takes place with respect to retail merchandise that has already been stolen.”). Common sense dictates that any activity involving stolen property

— other than return i ng it to its o wner

— nec es sari l y involv es an intent to deprive the owner of that property.

The functional equivalence test is “synonymous with the concepts of ‘necessary inclusion’ or ‘subsumption of elements.’” Meru , 414 S.W.3d at 166 (quoting McKith a n , 324 S .W.3d at 588 n .15) . E v en tho ugh the specific intent to deprive the owner of the property is
not explicitly stated as an element of organized retail theft (or explicitly alleged in the indictment in this case) , such intent is necessarily included i n the co nduct required for org a nized retail theft and, therefore, it is subsumed by an allegation of organized retail theft. U nder the functional equivalence analysis, the theft element of the intent to deprive the owner of property can be deduced by the conduct targe t ed by th e st atut e and a lleged in the indictment in this case , which necessarily deprives the owner of the property

. See Lang , 561 S.W.3d at 183 (observing that “the statute was enacted for the purpose of targeting professional theft rings i n volved i n the large

- sc ale thef

t , tran sfer, repackaging, and reselling of stolen retail merchandise”). The final theft element missing from the indictment for organized retail theft is the identity of the property owner. “Owner” is defined as “a perso n who has titl e to the proper ty,
p osse ssion of the property, whether lawful or not, or a greater right to possession of the property than the actor[.]” Tex. Penal Code § 1.07(35)(A); see Garza v. State , 344 S.W.3d 409, 413 (Tex. Crim. App. 2011) (observin g that le gisla t ure gave “expa nsiv e mea ning” to definition of “owner” “to give ownership status to anyone with a rational connection to the property”).11 The formal name of the person or entity owning the property is not a substantive element of theft. G a rza , 344 S.W. 3 d at 413 ; Byrd v . St a te , 336 S.W.3d 242, 251 (Tex. Crim. App. 2011). However, the existence of the property owner is an element of theft that must be proven by the State. Byrd , 336 S.W.3d 251

– 52; s ee id. at 252 (“Although the name of the o w ner is n ot a s ubstanti ve eleme nt o f t heft, the State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment as the owner is the same person (or entity)

— regardless of the name

— as shown by the evidence.”). So , we must dete r mine whe ther the exi s te nce or identity of the owner of the property

— the owner of the stolen retail merchandise described in the indictment

— can be deduced from the elements of the charged offense or the descriptive averments in the indictment

.

The S tate a rgues th at the e xist e nc e of the specific owner of the property is inherent in the charged elements of organized retail theft. The State observes that the property at issue in the indictment (and in the statute) is “stolen retail merchandise ” and, re lying on the

s tatutory def

i ni tion of “retail merchandise,” argues that the proof necessary to establish that the property at issue was “stolen retail merchandise” “ necessarily includes proof that the retail establishment is an owner of the propert y . ” See Tex. P enal Cod e § 31.0 1(11 ) ( “‘Retail merchandise’ means one or more items of tangible personal property displayed, held, stored, or offered for sale in a retail establishment.”); see also id. § 31.01(7) (“‘Steal’ means to acquire property or serv i ce by th eft.” )

.

Ho wever, whi le i t is true that the offense of organized retail theft involves stolen retail merchandise , the general status of the property as stolen retail merchandise does not designate or specify the particular retail establishment f rom which the mercha nd ise came

. The i dentity of the particular retail establishment from which the merchandise came

— that is, the12

owner of the stolen retail merchandise

— is not a required element of the offense of organized retail theft. It matters not wh i ch retail est ab lishmen t the merc hand i s e came from (HEB, Target, Walmart, etc.) ; the S tate must only prove that the property at issue is stolen retail merchandise.
W hile the State could prove the identity of the particular retail establishment from which t he merchandis e was s to len in ord er t o show t hat the retail merchandise at issue is stolen

— as the State did here by showing that appellant stole the items from HEB

— the State is not required to do so. See Farrakhan v. State , 263 S.W.3d 124, 139 (Tex. App.

— H ouston [1st D is t.] 20 0 6), aff’d , 247 S.W.3d 720 (Tex. Crim. App. 2008) ( “That the State could and did present evidence of [facts related to lesser offense ] does not mean that the State was required to do so

. ”)

. The “relevant inquiry is not what the evide n ce may show b ut what t he State i s re q uired to prove to establish the charged offense.” Rice , 333 S.W.3d at 145

– 46 (quoting McKithan , 324 S.W.3d
at 593). Further, the identity of the property owner cannot be deduced from any descriptive averments in the indictment. The indic tment cont ains a descri ption of the stolen property

— “ groceries, herbal supplements, energy drinks and animal treats” with a total value of “greater than $500 but less than $1500”

— but that description does not identify the retail
esta b lishment from wh ich th e property was taken. Although the evidence at trial demonstrated that HEB was the owner of the stolen retail merchandise in this case, the determin ation of whether an offense is a lesser

- included offense of the alleged offense unde r the cognate ple adings approach is a question of law and does not depend on the evidence to be produced at the trial. Safian , 543 S.W.3d at 220 ; Hall , 225 S.W.3d at 535

.

Nothing in the indictment i n this case i s functionally equivalent to the theft ele m ent of identi fy of the property owne r . There is no allegation in the indictment , express or13

implied, reflecting the identity of the owner of the property at issue in this case or from which the identity could be deduced

. Th is theft element cannot be ded u ced from the el ements of the cha rged offense or the descriptive averments in the indictment . Thus, theft of property is not a lesser

- included offense of the charged offense in this case. See DeLeon v. State , — S.W.3d

— , No. 03

- 18

- 00268

- CR, 2018 WL 683774 2 , at *3

– *5 (T ex. App.

— Austin Dec . 28 , 2018, pet. ref ’ d) (c oncluding that t heft of firearm was not lesser

- included offense of charged burglary of habitation where indictment failed to allege that stolen property was firearm and that theft element could not be deduced fr om burgla ry indictm ent) ; s ee, e.g. , Rice , 333 S.W.3d at 146

– 47 (holding that reckless driving was not les se r - inclu ded offense of charged offense of aggravated assault with deadly weapon because, although indictment included phrases “did use a n d exhibit a d eadly wea pon, to

- wi t: a motor vehicle” and “that in the manner of its use and intended use,” there was no a llegati on, express or implied, that appellant was driving); McKithan , 324 S.W.3d at 589

– 90 (holding that offensive

- contact assault was n ot lesser

- inc luded off ense of ch arge d offense of aggravated sexual assault because “physical force and violence” alleg at ion of indictment was not func tional equivalent of physical contact and State was not required to prove physical contact to establish “ p hysical force and viol ence” alle gati o n); Hall , 225 S.W.3d at 53 6

– 37 ( concluding that a ggravated assault by threat was no t lesse r - included offense of m urder committed by shooting victim with firearm because, although trial evidence may have supported that d efendant thre atened by displayin g gu n , indictment alleged neither threat nor display).
B ecause theft of pr op erty is not a lesser

- included offense of the charged organized retail theft, we are not authorized to reform the judgment to reflect a c onviction for theft. See Thornton , 4 25 S.W .3d at 298

– 99.14 CONCLUSION The Court of Criminal Appeals remanded this ca se to thi s Court to consider whe ther the judgment of conviction should be reformed

. See Lang , 561 S.W.3d at 184. We conclude that it sh o uld not.

Fi rst, the record does no t suppo rt reformation to the lesser

- included offense of attempted organized retail t heft. Second, while t he recor d reflects that the State proved that appellant committed theft of property valued at $500 or more but le s s than $1,500 by takin g the alleged i tems f

rom HEB , we conclude that theft of property is, in this case, not a lesser

- in cluded offense of the charged organized retail theft . Thus, we do not have authority to reform the judgment of conviction to reflect a conviction fo r either attempted orga n ized r etail theft or theft of property. See Thornton , 425 S.W.3d at 300

.

Lacki ng author ity to reform the judgm ent of conviction , we reverse the judgment of conviction and render a judgment of acquittal.

____________________ ______________________ Melissa Goodwin, Justice Before Justices Goodwin, Bak er , and K elly Reversed and Rende red on Remand Filed: September 27, 2019 Publish