Henry Richard Bullock, Jr. AKA Imari Abybakari v. State
14-14-00304-CR
| Tex. | Oct 20, 2015Background
- Appellant Henry Bullock charged with theft of a truck; convicted and sentenced to 30 years.
- At trial appellant testified he did not exercise control over the truck and denied committing theft.
- The jury was not given a lesser-included-offense instruction for attempted theft; jury convicted of theft.
- Appellant moved for rehearing arguing the evidence raised attempted theft and entitled him to an instruction under Texas law.
- Panel majority affirmed conviction relying on cases addressing sufficiency for theft; dissent (McCally, J.) argues the lesser-included analysis was applied incorrectly and juries must decide fact conflicts.
- Dissent notes the 30-year sentence for theft exceeds the 20-year maximum that could apply for enhanced attempted theft, so appellant suffered some harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to lesser-included instruction (attempted theft) | Evidence (appellant’s mixed testimony and conduct) raised attempted theft; instruction required | Jury was not entitled because appellant denied intent/control; sufficiency cases show theft occurred | Majority: no instruction; Dissent: appellant was entitled to attempted-theft instruction and reversal/remand warranted |
| Proper analytic standard for lesser-included issue | Use Jones/Rice standard: any evidence from any source that raises lesser offense | Majority relied on sufficiency-to-convict/theft cases to reject lesser-included instruction | Dissent: Jones/Rice control; courts must consider any evidence raising issue; jury decides fact conflicts |
| Relevance of legal-sufficiency cases to charge issues | Charge issues require whether any evidence permits rational finding of lesser offense, not legal sufficiency | Majority treated sufficiency authorities about when theft "occurs" as controlling | Dissent: sufficiency cases are unpersuasive for whether instruction should be given; jury role paramount |
| Harm from sentencing disparity | Appellant suffered harm because theft sentence (30 yrs) exceeds maximum for enhanced attempted theft (20 yrs) | Majority affirmed conviction and denied rehearing | Dissent: some harm shown; would reverse and remand for new trial |
Key Cases Cited
- Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998) (lesser-included instruction warranted if any evidence from any source raises the issue)
- Rice v. State, 333 S.W.3d 140 (Tex. Crim. App. 2011) (defendant entitled to lesser-included instruction when record permits a rational jury to find only the lesser offense)
- Lofton v. State, 45 S.W.3d 649 (Tex. Crim. App. 2001) (denial of instruction where defendant flatly denied the conduct giving rise to lesser offense)
- Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011) (evidence may be subject to different interpretations; jury decides whether lesser-included offense is supported)
- Bridges v. State, 389 S.W.3d 508 (Tex. App.—Houston [14th Dist.] 2012) (discussing sentencing ranges and effect of conviction for attempted vs. completed theft)
- Denton v. State, 880 S.W.2d 255 (Tex. App.—Fort Worth 1994) (example where jury acquitted of theft but convicted of attempted theft under similar facts)
- Barnes v. State, 513 S.W.2d 850 (Tex. Crim. App. 1974) (discusses physical acts showing commencement of theft attempt)