Alexander v. StateAlexander v. State
- Reporters:
- , ,
- Before:
- Carroll
By three indictments in three separate causes, appellant was charged with theft.
*756 I. CAUSE NO. 3-91-166-CR
Appellant raises a single point of error in cause number 3-91-166-CR, in which he asserts the evidence is insufficient to establish that the property taken was of a value greater than $750.00 and less than $20,-000.00 because the items of property alleged to have been taken were taken in separate and distinct incidents and neither was of a value in excess of $750.00. 2
In reviewing the sufficiency of the evidence to sustain the conviction, the standard of review on appeal is the same for both direct and circumstantial evidence cases. The critical inquiry is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2787-88, 61 L.Ed.2d 560 (1979); McGoldrick v. State, 682 S.W.2d 573, 577 (Tex.Crim.App.1985). In circumstantial evidence cases we must also determine whether the evidence viewed in the light most favorable to the verdict excludes every reasonable hypothesis except the defendant’s guilt. Carlsen v. State, 654 S.W.2d 444, 447 (Tex.Crim.App.1983). 3 The appellate court must consider all of the evidence presented whether properly or improperly admitted. Nickerson v. State, 810 S.W.2d 398, 400 (Tex.Crim.App.1991).
The indictment alleged, in pertinent part, that appellant unlawfully acquired and exercised control over “one saddle and one trailer of the value of more than seven hundred and fifty dollars and less than twenty thousand dollars from Charles E. Ritz....” Appellant argues that the State failed to prove that both items were stolen in a single act of theft. Appellant asserts the proof establishes that the saddle and trailer were taken on different occasions and that neither item exceeds $750.00 in value. Therefore, appellant argues, the maximum punishment he should have received was a term of confinement of ten years. 4
Charles Ritz testified that in July 1990 appellant accompanied him to his property south of Killeen in Bell County. While there, appellant expressed an interest in using Ritz’s flat bed trailer and also “noticed” Ritz’s saddle hanging in the barn. Ritz later determined that the saddle and trailer were missing. Remembering appellant’s interest in these items, Ritz called appellant expressly to inquire what he had done with them. Ritz testified that appellant admitted taking the saddle and trailer, but told Ritz that he was having the saddle cleaned and the trailer repaired. In fact, appellant had pawned the saddle and sold the trailer.
On the stand, appellant admitted he took the saddle and trailer, but disputed that: (1) he took them at the same time; and (2) the items individually, or collectively, exceed $750.00 in value. Ritz testified that both items “disappeared right about the same time.” He further testified, “I can’t say for sure if he took them on the same day but I do know they were — they both disappeared the same time frame.” Ritz valued his saddle at $300 to $350.00 and his trailer at $700.00. Mr. Johnny Fisher, an experienced auctioneer, estimated the value of the trailer, which had new tires, to be “at least $750.00.” Mr. Langford, who owned the pawnshop where appellant had pawned Ritz’s saddle, valued the saddle at $200.00 to $250.00.
The trial judge, in a trial before the court, is the sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony given by the State or defensive witnesses. Minx v. State, 615 S.W.2d 748, 749 (Tex.Crim.App. *757 1981). The trial court was free to disbelieve appellant’s testimony and conclude from Ritz’s testimony that appellant took the saddle and trailer on the same occasion. Furthermore, the trial testimony showing that appellant disposed of the stolen items on different dates is not evidence tending to establish that he took the items on different dates. 5 Finally, Fisher’s testimony, that the trailer with new tires was worth at least $750.00 in July of 1990, is sufficient to support a finding that the value of the trailer alone exceeded $750.00. Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Additionally, despite appellant’s testimony that he took the items on separate occasions, we conclude that when the evidence is viewed in the light most favorable to the verdict, it excludes every reasonable hypothesis but guilt. Appellant admitted that: (1) he did not own the saddle or trailer; (2) he took both items; (3) he pawned the saddle; (4) he sold the trailer; and (5) Ritz did not give him permission to sell the trailer or saddle. Ritz denied giving appellant permission to take, pawn, or sell the saddle or trailer. The evidence is sufficient to support the conviction. Appellant’s point of error is overruled.
II. CAUSE NOS. 3-91-167-CR & 3-91-168-CR
In a single point of error, appellant asserts the trial court erred in assessing punishment at twenty years’ imprisonment in each of these two causes. Specifically appellant contends that the punishment was unlawfully enhanced pursuant to
The first paragraph of the indictment in each cause charged appellant with theft of property of the value of more than two hundred dollars and less than seven hundred and fifty dollars. The second and third paragraphs of each indictment then alleged that, before the date of the alleged offense, appellant had been twice convicted of felony theft in Travis County. The fourth paragraph of each indictment alleged that appellant had been previously convicted in Williamson County of the felony offense of unauthorized use of a vehicle. 6 The trial court found appellant guilty in each cause and found the three allegations of previous felony convictions true.
Article 31.03(e)(4)(E) provides that a theft shall be a third degree felony if the value of the property stolen is less than $750 and the defendant has been previously convicted two or more times of any grade of theft.
Upon a conviction under § 31.-03(e)(4)(E), the defendant’s punishment may be enhanced pursuant to
Appellant first points out that § 31.07 is found in chapter 31 of the Penal Code. Chapter 31 is part of title 7, which is denominated “Offenses Against Property.” Chapter 31 is entitled “Theft.” Each section in chapter 31 bears the specific subtitles of the offenses contained in the theft chapter.
Section 31.02 recites that
A comparison of the theft and unauthorized-use sections of the code illustrates that the
mens rea
element in
Section 31.07 provides: “A person commits an offense if he intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.”
Appellant next argues that because the court of criminal appeals has held that unauthorized use of a vehicle is a lesser included offense of theft, Neely v. State, 571 S.W.2d 926, 928 (Tex.Cr.App.1978), it should be treated as a theft offense. Appellant cites a double jeopardy case, Ex parte Jefferson, 681 S.W.2d 33, 34 (Tex.Cr. App.1984), to support his argument. In Ex parte Jefferson, the court of criminal appeals held that a defendant could not be convicted for both the theft and the unauthorized use of the same pickup truck. Ex parte Jefferson, 681 S.W.2d at 34. The court relied on the reasoning in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), that the greater offense of auto theft was the same, for purposes of double jeopardy, as the lesser included offense of joyriding.
In the two causes before us, appellant was convicted of a violation of: (1) theft of cattle panels from Johnny Cloud on July 15, 1990; and (2) theft of U.S. currency from James Tomme on July 23, 1990. The previous conviction for unauthorized use of a vehicle used to enhance was not a lesser-included offense of either charged offense. Rather, the previous conviction was based on a wholly unrelated criminal episode for which appellant was convicted in 1989. *759 Therefore, the reasoning of Brown and Jefferson does not apply here.
We hold that the
III. CONCLUSION
The judgments of conviction are affirmed.
Notes
. The district court cause nos. 39,470, 39,471 and 39,472 are docketed on appeal as 3-91-166- *756 CR, 3-91-167-CR and 3-91-168-CR, respectively.
.The indictment alleged third degree felony theft.
. This holding in Carlsen was prospectively overruled in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). Carlsen continues to apply to cases tried before November 6, 1991.
.
See
.Consequently,
When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.
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. The maximum punishment for a third degree felony is ten years imprisonment and a $10,000 fine.
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Theft as defined inSection 31.03 of this code constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.