Summary
holding defendant not entitled to attempted-theft instruction because he "hooked the trailer to his van and had moved the trailer, although only slightly"
Summary of this case from Alexander v. StateOpinion
No. 05-05-01159-CR
Opinion issued June 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 382nd District Court, Rockwall County, Texas, Trial Court Cause No. 2-04-539. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
OPINION
Donald Lloyd Malone appeals his theft conviction. A jury convicted appellant and sentenced him to twenty-one months' confinement and a $10,000 fine. In a single issue, appellant argues the trial court erred in failing to instruct the jury on the lesser-included offense of attempted theft. We affirm the trial court's judgment. At approximately 2:00 a.m. on December 15, 2004, Rockwall police sergeant Kirk Aldridge saw two men standing at the back of a trailer that was hooked up to a large white van. Aldridge got out of his patrol car and walked up to the area. Aldridge could see that there was a wrecker boom coming out of the van, and the boom was hooked up to the trailer. The doors of the van had been removed, and inside the van was a deck of lights. The van had its parking lights on, and the engine was running. Aldridge could see that a block on which the trailer tongue had been resting had been moved, indicating "that the trailer moved at least a few inches from being" dragged. Aldridge asked appellant what he was doing. Appellant stated he had been contacted by the trailer's owner and asked to take the trailer to his shop for repairs. Aldridge ran the trailer's license plate and had the dispatcher contact the owner, Glen Smith. Smith came to the scene and noticed the van hooked up to his trailer. Smith testified the trailer was "crooked from the building" and "more in line with the van that was hooked up to it." When Smith parked the trailer, he testified, it was not crooked. Police arrested appellant and charged him with theft. At trial, the court denied appellant's request for a jury charge on the lesser-included offense of attempted theft. The jury convicted appellant of theft, and this appeal followed. In a single issue, appellant argues the trial court erred in failing to instruct the jury on the lesser-included offense of attempted theft. Upon request, a lesser-included offense instruction should be included in the jury charge if (1) the requested charge is for a lesser-included offense of the charged offense and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005). An offense is a lesser-included offense if, among other things, it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09(4) (Vernon 1981). When we review a trial court's decision to deny the request, we consider the charged offense, the statutory elements of the lesser offense, and the evidence actually presented at trial. Hayward, 158 S.W.3d at 478. The evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App. 1999). A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2005). "Appropriate" means to acquire or otherwise exercise control over property other than real property. Id. § 31.01(4)(B). 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 intended. Id. § 15.01(a). It is not necessary that the property be taken off the premises where the theft occurs; it is instead only essential that the evidence show an exercise of control over the property, coupled with an intent to deprive the owner of the property. Hill v. State, 633 S.W.2d 520, 521 (Tex.Crim.App. 1981). Here, the evidence shows appellant had hooked the trailer to his van and had moved the trailer, although only slightly. The van's engine was running, and the trailer was attached such that it could be moved. Although appellant did not have time to drive away before police confronted him, it was not necessary for him to drive away in order to complete the offense of theft. See Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2005); Hill, 633 S.W.2d at 521. It was only necessary that he exercise control over the property with intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.01(4)(B) (Vernon Supp. 2005); Hill, 633 S.W.2d at 521. Appellant does not dispute the fact that he intended to steal the trailer. We conclude appellant's exercise of control over the trailer clearly showed a completed theft of the trailer such that there was no evidence that, if appellant was guilty, he was guilty only of the lesser offense of attempted theft. See Hayward, 158 S.W.3d at 478. Accordingly, appellant was not entitled to a lesser-included offense instruction. See id. We overrule appellant's sole issue. We affirm the trial court's judgment.