Edwаrd Munoz CHAVEZ, Appellant, v. The STATE of Texas, Appellee.
No. 1286-91
Court of Criminal Appeals of Texas, En Banc.
Dec. 23, 1992.
843 S.W.2d 586
BENAVIDES, Judge.
The judgment in this case reflects that appellant “... knowingly and intelligently waived his right to counsel...” That conclusion by the trial judge, in my opinion, implicitly incorporates the notion that the defendant was properly admonished before waiving his right to an attorney. In other words, the waiver was intelligently made because the defendant was warned of the risks of self-representation and cоnsciously weighed them.
The concerns expressed by the majority opinion would be satisfied if somewhere in the record, be it the docket sheet, the judgment, etc., it was expressly stated (rather than implicitly reflected) that the admonishments were given. The majority appears to want something more than a recitation of an “intelligent” waiver in the judgment of the trial court. I find the recitations in the judgment adequately reflect appellant was properly admonished and his Sixth Amendment right protected.
I reiterate, however, that trial judges should follow the rules of Blankenship, as apparently did the trial judge in this cause. It becomes only a question of whether the wording in the judgment is sufficient to spеcifically reflect proper admonishments were given under the majority opinion authored today. In my mind, the only purpose of reciting in the judgment that the waiver was “intelligently and knowingly” made is to reflect that the admonishments were given.
We these comments, I respectfully dissent.
WHITE, J., joins this opinion.
J. Pink Dickens, Plainview, for appellant.
Terry McEachern, Dist. Atty., and Cheryl N. Farren, Asst. Dist. Atty., Plainview, Robert Huttash, State‘s Atty. and Matthew W. Paul, Asst., State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
BENAVIDES, Judge.
Appellant was convicted of theft and his punishment assessed at confinement in jail for a period of one year and a fine of $1,000. The Amarillo Court of Appeals affirmed in an unpublished opinion, holding that unexplained possession of recently stolen property is sufficient circumstantial evidence of guilt to sustain conviction for theft undеr an information charging that the accused received property knowing it was stolen by another. Chavez v. State, Tex.App.—Amarillo, Cause No. 07-91-0010-CR, delivered August 27, 1991. Ap
I.
On May 21, 1990, Carl Pelphrey reported to Plainview police that several items from his shed were missing, among them a lawnmower, a weedeater, and a сhild‘s bike. Several days later, Crimestoppers, a weekly bulletin in the Plainview newspaper, reported the theft. Soon after, the police received an anonymous phone call that Appellant had been seen carrying such property into the apartment of his common-law wife. The caller also stated that shе had seen the property inside that apartment on two later occasions.
Based on this information, and their knowledge that Appellant lived near the complainant for a time, the police obtained a search warrant for his wife‘s residence. There, they discovered all of the property described by the caller and reported stolen by the complainant. Appellant at first denied that the items belonged to him, but he eventually admitted that they were his without explaining how he acquired them.
II.
Our decisional law has long permitted the conviction of a person for theft if the evidence shows him to have been found in possession of recently stolen property without offering an explanation inconsistent with guilt when first called upon directly or circumstantially to do so. Sutherlin v. State, 682 S.W.2d 546 (Tex.Crim.App.1984). Although often denominated a presumption
We have been disinclined, however, to apply the same rule when evaluating sufficiency of the evidence to prove recеipt of property, knowing it to have been stolen by another. Under such circumstances, we have not thought it probable enough for criminal conviction that those who receive property from a thief usually know that it was stolen by him. Accordingly, our decisions hold that more proof than the mere circumstance of recent, unexplained possession is required to sustain a conviction in such cases. Hynson v. State, 656 S.W.2d 460 (Tex.Crim.App.1983).
Dissimilar treatment of these related evidentiary problems would not have seemed remarkable until 1985, when it was discovered that consolidation of theft offenses by the latest revision of our Penal Code had effectively eliminated any erstwhile distinction betweеn theft and receiving stolen property. McClain v. State, 687 S.W.2d 350 (Tex.Crim.App.1985). Under the 1925 Code, those crimes were proscribed by different statutes, but they now appear as subdivisions of the same general theft law. Accordingly, we held in McClain that “knowing the property possessed ‘was stolen by another’ is merely a subset of knowing the possession is ‘without the owner‘s consent.‘” 687 S.W.2d at 354. To plead theft, therefore, the State has only to allege that the accused appropriated property unlawfully with intent to deprive the owner of it. The manner in which he came to possess it, whether by initially taking it from the owner or by subsequently receiving it from someone who did, is not an essential element of theft under current law.
Today, evidеnce sufficient to show an accused exercised control over property without consent of the owner, intending to deprive him of it, is always enough to prove theft. Evidence of various kinds may serve the purpose. Receiving property from another, knowing it to be stolen by him, establishes the offense because it is tantamount under McClain to a knowing exercise of control without consent of the owner. Unexplained possession of recently stolen property also establishes the offense, because it has long been considered sufficient to prove the same elements. And now, because the receipt of stolen property is no longеr an offense requiring proof of different statutory elements, it follows that proof of unexplained possession is also sufficient for conviction in cases where the accused in fact received the stolen property from someone other than the alleged owner. To the extent that Hynson held otherwise, it was overruled in McClain by necessary implication.
Nevertheless, while it is no longer necessary to plead the receipt of property knowing it was stolen by another, it is clear that an actual pleading of these matters does commit the State to prove them at trial. Under McClain, the knowing receipt of stolen property is a subset of appropriation without effective consent. Pleading it, therefоre, represents a more specific allegation of that which it is necessary to prove in any case. And our law is well settled that unnecessarily specific allegations of this kind are not merely surplusage, but must be proven to sustain conviction. Whetstone v. State, 786 S.W.2d 361, 364 (Tex.Crim.App.1990); McWilliams v. State, 782 S.W.2d 871, 873-874 (Tex.Crim.App.1990), and cases cited therein. Certainly this is true where, as here, the jury was in fact instructed that it might not convict without finding such elements to be true beyond reasonable doubt. See Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984). The impact of Hynson under these circumstances, and the extent to which it survives McClain, is that unexplained possession of recently stolen property is not sufficient proof of theft in any case where
The State, anticipating this result, argues that the Court of Appeals, although purporting to apply the unexplained possession rule, nevertheless actually relied uрon other evidence which, in the aggregate, was sufficient for conviction when taken together with the circumstance of unexplained possession. See Hardesty v. State. That may very well be true. If it is, the Court of Appeals will have a chance to say so on remand.* Meanwhile, for its misplaced reliance on the rule that unexplained possession of recently stolen property is sufficient for conviction, we reverse its judgment and remand for reconsideration in a manner not inconsistent with this opinion.
MILLER and MALONEY, JJ., concur in the result.
OVERSTREET, J., dissents.
BAIRD, Judge, concurring.
For the following reasons, I believe the majority‘s discussion of McClain v. State, 687 S.W.2d 350 (Tex.Cr.App.1985), is circular and wholly unnecessary. McClain was not cited or relied upon by the Court of Appeals, nor was it mentioned in appellant‘s petition fоr discretionary review, or either of the briefs before this Court. As the majority opinion ultimately proves, the discussion of McClain is gratuitous dicta which adds nothing to the settled jurisprudence of this State.
I.
Appellant contends “the rule of recent unexplained possession does not apply in cases of receiving stolen property.” See page 587.1 Rather than directly addressing appellant‘s contention, the majority launches into a discussion of McClain, to establish the general proposition that, in order to plead theft, “the State has only to allege that the accused appropriated property unlawfully with intent to deprive the owner of it.” Majority Opinion аt 588. However, the majority fails to recognize that this case involves the sufficiency of the evidence, not the sufficiency of the charging instrument. Only at the conclusion of its opinion does the majority realize the State specifically pled the property was unlawfully appropriated under
II.
The majority‘s discussion of McClain presents a circular argument that serves only to confuse a settled area of our law, namely, that where the State alleges matters “descriptive of the identity of the offense charged, it is incumbent upon the State to establish such allegations by evidence.” Burrell v. State, 526 S.W.2d 799, 802-803 (Tex.Cr.App.1975). The majority, relying on McClain, states:
... To plead theft, therefore, the State has only to allege that the accused appropriated property unlawfully with intent to deprive the owner of it.
Majority Opinion at 588.
This statement is certainly true in light of Studer v. State, 799 S.W.2d 263, 272-273 (Tex.Cr.App.1990), wherein we essentially held that which purports to be a valid charging instrument is, without objection, a valid charging instrument. See also, Ex parte Morris, 800 S.W.2d 225, 227 (Tex.Cr.App.1990) (Fаilure to object to faulty indictment before trial will forever waive error); and, Ex parte Gibson, 800 S.W.2d 548, 551 (Tex.Cr.App.1990) (“[I]f the instrument comes from the grand jury, purports to charge an offense and is facially an indictment, then it is an indictment for purposes of Art. V., § 12(b), and its presentation by a State‘s attorney invests the trial court with jurisdiction to hear the case“). However, the majority erred by stating:
The manner in which he came to possess it, whether by initially taking it from the owner or by subsequently receiving it from someone who did, is not an essential element of theft under current law.3
* * * * * *
... And now, because the receipt of stolen property is no longer an offense requiring proof of different statutory elements, it follows that proof of unexplained possession is also sufficient for conviction in cases where the accused in fact received the stolen property from someone other than the alleged owner.
Majority Opinion at 588.
This interpretation of
(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of the property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner‘s effective consent;
(2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or
(3) property in the custody of any law enforcement agency was explicitly represented by an law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.
If the State purports to charge the offense of theft under
Although challenge to an accusation for failure to give adequate notice on which to prepare a defense must be asserted in a timely fashion ... when properly asserted with adequate statement of the manner in which notice is deficient; fundamental constitutional protections are invoked. Because of the fundamental notions of fairness that require adequate notice of the nature of the charges against the accused in оur system of justice, a timely claim of inadequate notice requires careful consideration. This calls for examination of the criminal ac
cusation from the perspective of the accused, as contrasted to the measurement of its allegations against the statute that is the test for a claim that no offense is alleged.
Drumm, 560 S.W.2d at 946-947. See also, Miller v. State, 677 S.W.2d 737, 740 (Tex.App.—Corpus Christi 1984).
In Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981) (opinion on rehearing), we set forth our general rule concerning the State‘s pleadings:
... The Legislature has established offenses and the elements constituting those offenses. The terms and elements are further defined within the Penal Code. Under these cases, the definitions of the terms and the elements are essentially evidentiary and need not be allеged in the indictment. This is, in effect, the general rule that, subject to rare exceptions, an indictment which tracks the words of the penal statute in question is legally sufficient.
Thomas, 621 S.W.2d at 161 (emphasis in original). However,
... contains a necessary allegation of an act by the accused which comprises more than one statutorily defined means of performance ... but the indictmеnt fails to specify which of the statutory definitions of the act is relied upon, the indictment is subject to a motion to quash. [Emphasis in original.]
Gibbons, 652 S.W.2d at 415. See also, Geter v. State, 779 S.W.2d 403, 405-406 (Tex.Cr.App.1989); Gorman v. State, 634 S.W.2d 681 (Tex.Cr.App.1982); Solis v. State, 787 S.W.2d 388 (Tex.Cr.App.1990); Reynolds v. State, 723 S.W.2d 685, 686 (Tex.Cr.App.1986); Dismore v. State, 658 S.W.2d 684, 685 (Tex.App.—El Paso 1983); and, Hogue v. State, 752 S.W.2d 585, 590 (Tex.App.—Tyler 1987).
Therefore, while it is not necessary for the specific method of unlawful appropriation to be pled, in the face of a timely motion to quash, the State will necessarily be required to pleаd one of the types of unlawful appropriation in
Because the majority‘s discussion of McClain is circular and wholly unnecessary, I can only concur in the result.