Court of Appeals of Texas, Third District, Austin
THE 424TH DISTRICT COURT OF BURNET COUNTY NO. 42185, THE
HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
Justices Goodwin, Baker, and Kelly Reversed and Rendered on
Melissa Goodwin, Justice
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 assessed 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 the organized retail theft
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 and remanded, 561 S.W.3d 174
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, therefore, "requires
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).
Because no such evidence was 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 consider whether the
judgment 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.
evidence has been found to be insufficient to support a
conviction, 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
appellant of the lesser-included 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.3d
289, 299–300 (Tex.Crim.App. 2014).
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 from facts that the jury actually 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
acquittal when there is legally sufficient evidence to prove
that he is guilty of a lesser-included
offense") (emphasis added). Thus, before we address
the two inquiries relevant to determining whether to reform
the judgment of conviction in this case, see Rabb,
483 S.W.3d at 21; Thornton, 425 S.W.3d at
299–300, we must examine whether the proposed offenses
are lesser-included offenses. In our analysis, we consider
judgment reformation for two offenses: attempted organized
retail theft and theft of property.
Organized Retail Theft
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 intended." 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 offense charged or an otherwise
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 necessarily found every element necessary
to convict the appellant 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 case to the lesser-included offense of
attempted organized retail theft is not appropriate. We
evidence in this case demonstrates that, with specific intent
to commit "some activity undertaken with respect to
stolen retail merchandise that goes beyond the conduct
inherent in ordinary shoplifting, " see Lang,
561 S.W.3d at 183, appellant committed an act that tended but
failed to effect the commission of organized retail theft.
That is, there is no evidence in this case that
appellant's actions tended but failed to effect the
commission of any activity "distinct from the mere
activity inherent in the ordinary shoplifting of retail items
by a single actor." See id. Consequently, the
record does not support a finding that in the course of
convicting appellant of organized retail theft, the jury
necessarily 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 attempted organized
retail theft. Because the answer 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 theft. See Thornton, 425
S.W.3d at 300.
concedes 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
attempting to leave the store while still possessing the
items-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 theft of property
is a lesser-included offense of organized retail theft.
determine 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. 646 (2018); see Hall v.
State, 225 S.W.3d 524, 535 (Tex.Crim.App. 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 535. We ask "whether the
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, 144 (Tex.Crim.App. 2011));
Hall, 225 S.W.3d at 536; see Tex. Code
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