Bullock v. State
2016 Tex. Crim. App. LEXIS 1511
| Tex. Crim. App. | 2016Background
- In Sept. 2013 Bullock was found inside the cab of an 18-wheel delivery truck; driver Martinez heard the engine rev, found Bullock with hands on wheel and (according to Martinez) feet on pedals; Bullock fled and was subdued.
- State charged Bullock with third-degree felony theft of the truck (property worth $20k–$100k) with two prior-felony enhancements; Bullock pleaded not guilty and represented himself.
- At trial Bullock admitted entering the cab with intent to steal items (cash/electronics) but denied intending to steal the truck or operating it (denied pressing pedals or starting/moving the truck).
- Bullock requested a lesser-included-offense instruction for attempted theft; the trial court denied it, saying Bullock’s testimony that he didn’t intend to steal the truck precluded attempted-theft inclusion.
- Jury convicted Bullock of theft; sentence enhanced to 30 years. The court of appeals affirmed, holding no evidence supported attempted-theft as a rational alternative.
- The Texas Court of Criminal Appeals reversed the court of appeals: it held there was more than a scintilla of evidence that a rational juror could find attempted theft (intent + acts beyond mere preparation) but not completed theft (no exercise of control), so the lesser-offense instruction should have been given; remanded for harm analysis.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bullock) | Held |
|---|---|---|---|
| Whether attempted theft is a lesser-included offense of theft | Instruction not required because evidence showed Bullock exercised control (hands on wheel, engine revving) so completed theft supported | Instruction required because some evidence showed Bullock did not exercise control or complete appropriation, so attempted theft is a valid alternative | Held: Attempt is a lesser-included offense as a matter of law and, on this record, there was more than a scintilla of evidence supporting attempted theft as a valid, rational alternative; trial court erred in refusing the instruction |
| Standard for requiring a lesser-offense instruction | Court of appeals treated the issue like a sufficiency challenge and required stronger proof of attempted theft | Use the two-step Hall test: (1) legal status as lesser-included; (2) some evidence in the record the jury could rationally rely on to convict only of the lesser offense | Held: Apply Hall; reviewing court must consider all evidence (not credibility) and give instruction when any evidence from any source permits a rational juror to find guilt only of the lesser offense |
| Whether defendant’s testimony denying intent forecloses lesser instruction | The defendant’s denial of intent means no evidence supports attempt (relying on Lofton) | Denial of intent does not automatically preclude instruction where other record evidence (and parts of defendant’s testimony) permit a rational finding of intent to steal the vehicle | Held: Lofton is distinguishable; here defendant admitted unlawful entry and flight and admitted intent to steal other items — the total record supplied evidence from which a jury could infer intent to steal the truck |
| Whether facts showing presence in driver’s seat always prove completed theft | Presence/possession in driver’s seat can establish theft in some precedents, so lesser instruction unnecessary | Presence alone does not always show appropriation or exercise of control—facts here (no ignition, no disengagement of air brake) could show failure to appropriate | Held: Prior cases (Barnes, Ward, Esparza, Krause) are distinguishable; given Bullock’s testimony denying control and the truck’s air-brake status, a juror could rationally find only attempted theft |
Key Cases Cited
- Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (two-step test for lesser-included-offense instructions)
- Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011) (low threshold for lesser-included instruction; consider whole record)
- Rice v. State, 333 S.W.3d 140 (Tex. Crim. App. 2011) (lesser must be a valid, rational alternative)
- Goad v. State, 354 S.W.3d 443 (Tex. Crim. App. 2011) (review considers all evidence; cannot assess credibility)
- Enriquez v. State, 21 S.W.3d 277 (Tex. Crim. App. 2000) (do not isolate defendant statements; examine total record)
- Lofton v. State, 45 S.W.3d 649 (Tex. Crim. App. 2001) (a defendant’s testimony that no offense occurred generally will not raise lesser-offense issue)
- Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998) (jury may believe or disbelieve parts of testimony)
- Barnes v. State, 513 S.W.2d 850 (Tex. Crim. App. 1974) (possession/control while starting car supported theft)
- Ward v. State, 446 S.W.2d 304 (Tex. Crim. App. 1969) (presence behind wheel with other facts supported theft)
- Esparza v. State, 367 S.W.2d 861 (Tex. Crim. App. 1963) (dominion/control by moving vehicle supported theft)
- Krause v. State, 206 S.W.2d 257 (Tex. Crim. App. 1947) (taking possession of car supported theft)
- Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993) (lesser-included instruction principles)