Case Number: 05-16-00195-CR

Judge: Craig Stoddart

Court: In The Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney:

Andrea L. Westerfeld
John R. Rolater

Defendant's Attorney:

Kyle Therrian

Description: Ignacio Lopez worked as a loss prevention officer for a JCPenny store. Sephora is a
department within the JCPenny store and Lopez’s duties included protecting Sephora’s
merchandise. Sephora is a “high shrink department” from which many items are stolen.
Lopez monitored the JCPenny sales floor in person and with closed-circuit cameras. In
July 2015, a sales associate alerted Lopez to a man, identified at trial as appellant, carrying a
plastic bag in the Sephora department. Shoplifters frequently use bags as a tool to steal
merchandise. Lopez testified he saw appellant select a night cream and a wrinkle cream without
looking at the items’ prices and put them into his plastic bag. He testified: “After concealment
was completed, [appellant] walked straight to the cash register.” The creams cost $50 each.
Lopez followed appellant to the check-out counter and stood a few feet away and
watched to see whether appellant paid for the items or attempted to return them. He could not
hear any discussion between appellant and the cashier. Appellant removed three items from his
plastic bag and completed a “no-receipt return.” Lopez explained that JCPenny’s return policy
allows customers to return merchandise without receipts in exchange for a voucher that can be
used at any JCPenny location. In exchange for the three items, the cashier gave appellant a card,
the front of which states: “JCPenny Merchandise Credit.” Appellant accepted the merchandise
credit for $250, which included the value of the night and wrinkle creams he collected in
Sephora. After appellant received the merchandise credit, Lopez apprehended him. The jury
viewed footage from the in-store closed-circuit cameras showing appellant in the Sephora
department and making the no-receipt return.
Officer Cliff Turrubiarte with the Plano Police Department arrived at the JCPenny store
and searched appellant’s plastic bag. He testified: “As I was searching the bag, [appellant] told
me that he did take the night cream and the wrinkle cream, but the other Peter Thomas clinic
cream was his wife’s and that he did not steal it from JCPenny.”

LAW & ANALYSIS
A. Variance
In his first issue, appellant asserts the evidence is insufficient to establish theft of United
States currency. The indictment alleged that appellant intentionally and knowingly appropriated
property, “namely: lawful United States currency, of the value of less than Fifteen Hundred
Dollars (1,500), without the effective consent of JC Penny’s [sic], the owner of the property.”
Appellant argues the State sought to prove theft of a JCPenny merchandise credit, which is not
currency, and the variance between what the State alleged and what was proven is material.
In cases involving a sufficiency claim based on a variance between the indictment and the
evidence, rather than reviewing the evidence under the traditional sufficiency standards, we
consider the materiality of the variance. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim.
App. 2002); Johnson v. State, No. 05-15-00060-CR, 2016 WL 1733610, at *5 (Tex. App.—
Dallas Apr. 28, 2016, no pet.) (mem. op., not designated for publication). A variance only
renders the evidence insufficient when it is material. Fuller, 73 S.W.3d at 253; Johnson, 2016
WL 1733610, at *5. A variance is material if it (1) deprived the defendant of sufficient notice of
the charges against him such that he could not prepare an adequate defense, or (2) would subject
him to the risk of being prosecuted twice for the same offense. Fuller, 73 S.W.3d at 253;
Johnson, 2016 WL 1733610, at *5. The burden of demonstrating the materiality of a variance
rests with the defendant. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001);
Johnson, 2016 WL 1733610, at *5.
Appellant does not argue he lacked notice of the charges against him such that he could
not prepare an adequate defense or he could be subject to the risk of being prosecuted twice for
the same offense. Rather, he argues, the State failed to prove what it alleged: theft of “lawful
United States currency,” and the variance is material “because it is both per se material and


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because part of Appellant’s defense at trial was that he did not take U.S. currency.” Appellant’s
argument does not comport with the standard against which we determine whether a variance is
material.
Theft occurs when a person, without the owner’s effective consent, unlawfully
appropriates property with the intent to deprive its owner of the property. TEX. PENAL CODE
§ 31.03(a), (b). In this context, “property” includes a document that represents anything of
value. Id. § 31.01(5)(C). The JCPenny merchandise credit is a document representing
something of value—the right to claim up to $250 in JCPenny merchandise. Thus, the
merchandise credit is “property” subject to being misappropriated within the meaning of the theft
statute, and the issue is whether theft of the card presents a material variance from the
indictment’s allegation that appellant misappropriated “lawful United States currency.”
In the case before us, the record shows appellant was not surprised by the variance and
his defense was not prejudiced by the State’s failure to prove the property description as alleged.
During jury selection, appellant’s counsel spoke with the venire about currency and United
States currency and asked whether potential jurors consider “Kyle bucks”1 to be currency. He
also asked potential jurors about the difference between a coupon and cash. He inquired whether
people would convict his client if the indictment alleged appellant stole from a Kohl’s store and
the evidence showed the theft occurred at Macy’s. Additionally, during opening statement,
counsel for appellant stated:
Kevin was trying to commit theft. He was. We’re not going to be here to dispute the color of the sky, we’re not going to be here disputing things that can’t reasonably be disputed. . . .
1 Kyle Therrian represented appellant at trial. It appears counsel used the term “Kyle Bucks” to describe fake currency he could create that would not have value as a way to discuss the difference between legal currency and non-currency with the venire. For example, he asked the venire whether Kyle Bucks are currency and why they considered or did not consider them currency.


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[W]hen it comes time to decide whether or not they’re [JCPenny] deprived of anything of value, whether or not Kevin acquired anything of value, whether or not what he received was something that he could exchange for value. So that’s issue No. 1. Issue No. 2, the indictment alleges that what Kevin appropriated was lawful U.S. currency, the value of which is less than $1500. We talked about this in jury selection, you know, whether or not the State has to prove what it is they’ve alleged, whether if you see that somebody has tried to commit a theft or made you think a theft was completed, which is something we would disagree with, but maybe you’ve come to that conclusion. The ultimate question is whether it was U.S. currency, and I think the answer is a resounding no.

We conclude that the asserted variance in this case is not material and does not render the
evidence insufficient to support appellant’s conviction. Appellant makes no argument that he
lacked notice of the charges against him such that he was unable to prepare a defense or the
variance could subject him to the risk of being prosecuted twice for the same offense. The
record shows appellant was fully aware of the discrepancy during jury selection and his opening
statement and he made it a key piece of his defense. Appellant began addressing the variance
well before the State began presenting evidence. Thus, even if we accept appellant’s argument
that a JCPenny merchandise credit is not lawful United States currency, appellant has not met his
burden of demonstrating the materiality of the variance. We overrule appellant’s first issue.
B. Sufficiency of the Evidence
In his second, third, and fourth issues, appellant argues the evidence is insufficient to
establish JCPenny as the owner of United States currency, establish the absence of JCPenny’s
effective consent because it knew about appellant’s fraud when value was loaded onto the
merchandise credit, and establish appellant appropriated something of value because monetary
instruments have no value without the maker’s ability and intent to honor.
We review a challenge to the sufficiency of the evidence on a criminal offense for which
the State has the burden of proof under the single sufficiency standard set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App.


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2014). Under this standard, the relevant question is whether, after viewing the evidence in the
light most favorable to the verdict, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2011) (footnotes omitted).
This standard accounts for the factfinder’s duty to resolve conflicts in the testimony,
weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. When
analyzing legal sufficiency, we determine whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the light most
favorable to the verdict. Id. When the record supports conflicting inferences, we presume that
the factfinder resolved the conflicts in favor of the verdict and therefore defer to that
determination. Id. Direct and circumstantial evidence are treated equally: Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. Id. We measure the sufficiency of the
evidence by the elements of the offense as defined by a hypothetically correct jury charge. See
Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (discussing Malik v. State, 953
S.W.2d 234 (Tex. Crim. App. 1997)).
Reversal on evidentiary sufficiency grounds is restricted to “the rare occurrence when a
factfinder does not act rationally.” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009);
see Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014) (stating that a reviewing
court should not act as a “thirteenth juror”). In other words, the appellate scales are weighted in
favor of upholding a trial court’s judgment of conviction. Winfrey v. State, 323 S.W.3d 875, 879
(Tex. Crim. App. 2010).


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As applicable here, a person commits an offense if he unlawfully appropriates property
with intent to deprive the owner of property. TEX. PENAL CODE § 31.03(a). Appropriation of
property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1).
1. Ownership
In his second issue, appellant challenges the evidence showing the owner of the stolen
property. He asserts the State failed to prove JCPenny as the owner of the property, as alleged in
the indictment. Appellant appears to argue the evidence shows Sephora owned the stolen
property.
The penal code defines “owner” as a person who has title to the property, possession of
the property, whether lawful or not, or a greater right to possession of the property than the actor.
TEX. PENAL CODE § 1.07(a)(35). “Although the name of the owner is not a substantive element
of theft, 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) . . . as shown by the
evidence.” Garza v. State, 344 S.W.3d 409, 412 (Tex. Crim. App. 2011) (quoting Byrd v. State,
336 S.W.3d 242, 251 (Tex. Crim. App. 2011)).
Here, Lopez described Sephora as both a department and a store within JCPenny, and
testified JCPenny is bound to protect Sephora merchandise. JCPenny’s no-receipt return policy
allows a person to return merchandise, including Sephora merchandise, without a receipt in
exchange for a merchandise credit that can be used at any JCPenny location. When a person
returns items to a cash register inside of Sephora, the JCPenny return policy applies. Generally
when merchandise is returned in Sephora, a person is given a Sephora credit. However, when
Sephora runs out of Sephora merchandise credits, JCPenny credits are used instead. The card
given to appellant states: “JCPenny Merchandise Credit.”


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The receipt generated when appellant returned the merchandise, which was admitted into
evidence, does not have a heading on it to indicate the name of the store that processed the
return, but Lopez stated the exchange occurred between appellant and JCPenny. The State asked
Lopez: “Was it JCPenny through the Sephora store?” and he replied “yes.”
Reviewing the evidence in the light most favorable to the verdict, we conclude a rational
trier of fact could have found JCPenny owned the stolen property. Lopez’s testimony and the
JCPenny merchandise credit admitted into evidence are sufficient for a rational trier of fact to
conclude Sephora is a department within JCPenny, JCPenny owns Sephora merchandise, and
when, as here, Sephora merchandise is returned, the party making the return may receive a
JCPenny credit to purchase other goods from JCPenny. JCPenny issued the merchandise credit
obtained by appellant. Through this analysis, rational jurors could have concluded JCPenny was
the “owner” and had title to or possession of the property stolen. We overrule appellant’s second
issue.
2. Consent to theft
In his third issue, appellant argues the evidence is insufficient to establish the absence of
the owner’s effective consent to the theft because JCPenny loaded value, if any, onto the card
with knowledge of appellant’s actions. The State was required to prove appellant unlawfully
appropriated the property without JCPenny’s effective consent. See id. §§ 31.03(a), (b)(1).
Consent is not effective if it is “given solely to detect the commission of an offense.” Id.
§ 31.01(3)(D).
Lopez testified that although he was suspicious of appellant’s behavior before appellant
completed the no-receipt return, he did not intervene before the transaction was completed
because no offense occurred until appellant signed for the merchandise credit. Prior to
completing the no-receipt return, Lopez could not know whether appellant would purchase the


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creams or return them. When the State asked Lopez whether he was “aware of anyone who
consented to [appellant] returning those items for cash value without having purchased them
first” and Lopez replied “no.”
Reviewing the evidence in the light most favorable to the verdict, we conclude a rational
trier of fact could have found JCPenny did not consent to the theft or any consent given was
solely to detect the commission of the offense. Therefore, the jury could have concluded the
State proved appellant unlawfully appropriated the property without JCPenny’s effective
consent. We overrule appellant’s third issue.
3. Value of JCPenny Merchandise Credit
In his fourth issue, appellant asserts the evidence is insufficient to establish he
appropriated something of value because “monetary instruments have no value without the
maker’s ability and intent to honor.” The State responds the value of the merchandise credit is
its face value. Property subject to theft can be real property, personal property, or “a document,
including money, that represents or embodies anything of value.” Id. § 31.01(5). Here, the State
alleged and was required to prove appellant appropriated property “of the value of less than
Fifteen Hundred Dollars (1,500.00).” See Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim.
App. 2003).
The State and appellant rely on Simmons to support their arguments on this issue.
Simmons was charged with theft of two checks with value between $1,500 and $20,000 after he
accepted checks as payment for his auto theft and car storage insurance claims. Simmons, 109
S.W.3d at 470, 472. The court of appeals reversed his conviction on grounds the evidence was
insufficient to prove the value of the checks because the State failed to show the drawer of the
check had sufficient funds to cover the checks at the time Simmons came to possess the checks.
Id. The court of criminal appeals reversed the court of appeals. Id. at 479. The Simmons court


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concluded the amount written on the face of the checks and signed by the drawer is prima facie
evidence of the checks’ value and is sufficient to show its value. Id. at 475.
Here, the State did not charge appellant with theft of a check, there is no evidence
appellant stole a check, and recognizing a JCPenny merchandise credit is not a check, we will
apply the legal principles from Simmons as urged by the parties. The face value of the
merchandise credit is $250, and the evidence established at least $100 of that value resulted from
appellant’s fraudulent no-receipt return. Applying Simmons, the written value of the
merchandise credit, absent disputed evidence, is sufficient to show the credit was less than
$1,500, as alleged in the indictment. See id. at 477.
Other evidence in the record also shows the State proved the merchandise credit had
value of less than $1,500 as alleged. Lopez testified the credit is “the same thing as money at
JCPenny” and the value placed on the card is one dollar per dollar of merchandise returned.
Lopez described the credit as being “basically a debit card” that is worth the cash value that has
been loaded onto it. The merchandise credit is a promise by JCPenny to exchange the value of
the credit for merchandise. Further, Lopez testified the merchandise credit held value to
appellant because he could have “walk[ed] across the street to a check place and [sold] it [the
merchandise credit] for half the value of it. By that time, we lose.”
Although there is evidence in the record that JCPenny could cancel the value assigned to
a merchandise credit, the fact a check will not be paid when tendered was not persuasive to the
Simmons court. See id. at 475. Similarly, here, the fact JCPenny could have canceled the credit
is not dispositive.
Reviewing the evidence in the light most favorable to the verdict, we conclude a rational
trier of fact could have found the value of the merchandise credit was less than $1,500. We
overrule appellant’s fourth issue.


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C. Lesser-Included Offense
In his fifth issue, appellant argues the trial court erred by denying his request for a lesser
included offense instruction on attempted theft. With respect to criminal attempt, the penal code
states: “A person commits an offense 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) (criminal attempt).
We review the trial court’s decision to submit or deny a lesser included offense
instruction for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim.
App. 2004). We apply a two-pronged test to determine if the trial court should have given a jury
charge on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App.
2007). We first determine if the proof necessary to establish the charged offense includes the
lesser offense. Id. If it does, we then review the evidence to determine that if appellant is guilty,
he is guilty only of the lesser offense. Id. at 536.
The second step is a question of fact and is based on the evidence presented at trial.
Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012). This step requires us to
determine whether “there is some evidence in the record which would permit a jury to rationally
find that, if the defendant is guilty, he is guilty only of the lesser-included offense.” Rice v.
State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). This evidence must show the lesser
included offense is a “valid, rational alternative to the charged offense.” Id. Moreover, it “is not
enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather
there must be some evidence directly germane to a lesser-included offense for the factfinder to
consider before an instruction on a lesser-included offense is warranted.” Skinner v. State, 956
S.W.2d 532, 543 (Tex. Crim. App. 1997).


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The State concedes attempted theft is a lesser-included offense of theft, see TEX. CODE
CRIM. PROC. art. 37.09(4), but argues the evidence does not satisfy the second prong of the
analysis. Based on the arguments in his third and fourth issues, appellant asserts he only
committed attempted theft because JCPenny consented to the theft and he did not appropriate
something of value. Our discussion above negates each of these arguments.
Further, appellant argues the cashier loaded value onto the card with full knowledge of
his fraudulent actions. However, the record shows the cashier did not know about appellant’s
actions when the cashier executed the no-receipt return. While Lopez was aware appellant had
not paid for the creams he returned, Lopez did not convey his suspicions about appellant’s
activity to the cashier. Appellant also re-urges his argument that he did not receive anything of
value and, therefore, he is only guilty of attempted theft. For the reasons discussed above, we do
not find this argument persuasive.
Having reviewed the entire record, we conclude there is no evidence that if appellant is
guilty, he is guilty only of attempted theft. Therefore, the trial court did not abuse its discretion
by denying appellant’s request to give a lesser-included offense instruction on attempted theft.
We overrule appellant’s fifth issue.


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D. Instruction on Community Supervision
In his sixth issue, appellant asserts the trial court erroneously denied his request to
instruct the jury to consider making a recommendation that the trial court suspend the imposition
of his sentence. Appellant argues section 15 of article 42.12 of the code of criminal procedure
permitted him to seek community supervision from the jury despite failing to file a sworn motion
alleging the non-existence of prior felony convictions. The State responds that appellant was not
eligible for community supervision and he did not, and could not, file the sworn motion required
by section 4(e) of article 42.12 and, therefore, the trial judge did not err by denying his request.
When addressing a claim of jury charge error, we first decide whether error exists. Ngo
v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we then analyze that
error for harm. Id. The trial court is required to give a written charge to the jury distinctly
setting forth the law applicable to the case. See TEX. CODE CRIM. PROC. ANN. art. 36.14.
When interpreting statutes as appellant requests we do here, we look to the literal text of
the statute in question and attempt “to discern the fair, objective meaning of that text at the time
of its enactment.” State v. Schunior, PD-0526-15, 2016 WL 6471981, at *4 (Tex. Crim. App.
Nov. 2, 2016) (quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)).
Ordinarily we give effect to the plain meaning of the text. Id. (citing Boykin, 818 S.W.2d at
785). When interpreting the literal text of a statute, we “presume that every word in a statute has
been used for a purpose and that each word, phrase, clause, and sentence should be given effect
if reasonably possible.” Id. (quoting State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App.
1997)).
Two provisions of article 42.12 of the code of criminal procedure are at issue: section
4(e) and section 15(a)(2-a). Section 4 is titled “Jury Recommended Community Supervision”
and subsection (e) states a “defendant is eligible for community supervision under this section


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only if before the trial begins the defendant files a written sworn motion with the judge that the
defendant has not previously been convicted of a felony in this or any other state, and the jury
enters in the verdict a finding that the information in the defendant’s motion is true.” TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 4(e). Section 15 is titled “Procedures Relating to State Jail
Felony Community Supervision” and subsection (a)(2-a) states: “In any case in which the jury
assesses the punishment, the judge must follow the recommendation of the jury in suspending
the imposition of a sentence or ordering a sentence to be executed.” Id. art. 42.12, §15(a)(2-a).
Appellant was convicted of a state jail felony. He argues that section 15 provides independent
procedures for assessing community supervision in state jail felony cases and permitted him to
seek community supervision from the jury despite not filing the sworn motion required by
section 4(e).
Appellant’s argument is not supported by the text of the statute. Section 4 of article
42.12 is a general provision that applies in cases such as this one when the jury is responsible for
recommending community supervision. See id. art. 42.12, § 4. Nothing in the code limits the
application of section 4 to non-state jail felonies. Rather, sections 4 and 15 work in tandem.
Section 4(e) provides the process by which a criminal defendant informs the trial court that he
seeks community supervision and that he meets at least one requirement for eligibility. Id. art.
42.12, § 4(e). Once eligibility is established, section 15 provides procedures relating to
community supervision for state jail felonies. Id. art. 42.12, § 15.
Reading the text of section 4 as a whole, it is clearly intended to apply to convictions for
state jail felonies unless noted otherwise. Section 4(d)(2) states a defendant is not eligible for
community supervision under section 4 if the defendant is convicted of a state jail felony for
which suspension of the imposition of the sentence occurs automatically under section 15(a).
See id. art. 42.12, § 4(d)(2). If we were to apply appellant’s argument that section 4 does not


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apply to provisions under section 15, section 4(d)(2) would be a nullity. Appellant’s argument
fails to give effect to each word, phrase, clause, and sentence of article 42.12. See Schunior,
2016 WL 6471981, at *4.
Further, article 42.12 includes numerous general provisions in addition to section 4 that
govern varying aspects of community supervision. See, e.g., TEX. CODE CRIM. PROC. ANN. art.
42.12, §§ 9 (presentence investigations), 10 (authority to impose, modify, or revoke community
supervision), 11 (basic conditions of community supervision), 12 (confinement as a condition of
community supervision), 19 (fees). If we apply appellant’s argument that the general provisions
of article 42.12, such as section 4, are separate from and apply independently of the specific
provisions such as section 15, we would hinder the trial court in ways not contemplated by the
statute. For example, if section 15 stands alone, then the trial court would lack any authority to
modify the terms of community supervision because section 15 does not address modifications
and section 10 would not apply. See id. art. 42.12, §§ 10, 15. Likewise, appellant’s argument
would mean that the trial court cannot order a person convicted of a state jail felony to pay fees
while on community supervision because section 15 does not provide for the payment of fees
and section 19 addressing the payment of fees would not apply. See id. art. 42.12, §§ 15, 19.
When the legislature intended a section of article 42.12 to only apply to a defendant convicted of
a state jail felony, the legislature made its intention clear through the heading in section 15
(procedures relating to state jail felony community supervision) or through specific language
such as that found in section 20A(a)(1): “This section applies only to a defendant who is granted
community supervision . . . for an offense punishable as a state jail felony . . .”
Applying the statutory interpretation method provided by the court of criminal procedure
in Schunior, we conclude a conviction for a state jail felony under section 15 does not discharge
a defendant’s duty to file a sworn motion pursuant to section 4(e). Having found no error in the


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court’s denial of appellant’s request for a jury instruction under section 15, we overrule
appellant’s sixth issue.

Outcome: