Henry Richard Bullock, Jr. AKA Imari Abybakari v. State, 14-14-00304-CR

In Sept. 2013 employees of Cort Furniture found appellant in the company delivery truck’s cab with his hands on the wheel and pressing pedals; the truck had not moved because an air brake was engaged. Appellant fled, was chased, caught, and detained by employees until police arrived.
The State charged appellant with theft of the truck (value $20,000–$100,000), a third-degree felony; the jury convicted and, after finding two enhancements true, sentenced him to 30 years’ confinement.
At trial appellant requested a jury instruction on the lesser-included offense of attempted theft; the court denied the request, citing appellant’s testimony denying intent to steal the truck.
On direct appeal this court affirmed, holding an attempted-theft instruction was not required because the evidence supported theft and appellant denied intent to steal the truck.
The Court of Criminal Appeals reversed, concluding there was more than a scintilla of evidence a rational factfinder could have found appellant guilty only of attempted theft, and remanded for a harm analysis.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by refusing a requested lesser-included-offense instruction on attempted theft	State: evidence supported conviction for theft; no attempted-theft instruction required	Bullock: there was evidence supporting only attempted theft; instruction should have been given	Court of Appeals (on remand): Error in omitting instruction was harmful and requires reversal and remand for new trial
Whether omission of the lesser instruction caused harm requiring reversal	State: denial not harmful because evidence supported theft and jury could convict only of greater offense	Bullock: harm occurred because jury lacked intermediate option and imposed higher sentence	Held: omission was harmful — jury had only convict-or-acquit choice and imposed a sentence greater than possible for attempt; reversal and remand ordered

Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013) (harm standard for charge error)
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (amenability of charge error review)
Saunders v. State, 913 S.W.2d 564 (Tex. Crim. App. 1995) (harm when jury denied lesser-included option)
O’Brien v. State, 89 S.W.3d 753 (Tex. App.—Houston [1st Dist.] 2002) (denial of lesser instruction likely results in harm)
Bridges v. State, 389 S.W.3d 508 (Tex. App.—Houston [14th Dist.] 2012) (penalty disparity between greater and lesser offense supports finding of harm)
Bignall v. State, 899 S.W.2d 282 (Tex. App.—Houston [14th Dist.] 1995) (same)
Bullock v. State, 509 S.W.3d 921 (Tex. Crim. App. 2016) (C.Cr.P. reversal concluding evidence supported instruction on attempted theft)