*1 in this standard to Lastly, an inference other than a supports dence us, is the the final outcome finding of the essential elements of the cases before Therefore, overruling crime, I concur in the rationally trier fact same. then no each rehearing a reasonable motions guilty beyond find the accused States’ irrespective this is true case. doubt —and
character of the evidence. DAVIS, W.C. DAVIS TOM G. sum, are no we are convinced there JJ., TEAGUE, in this concurrence. join analytical guidelines assaying
better whether a rational trier of fact could have
found the essential elements of the crime
beyond any given a reasonable doubt upon conviction had circumstantial evidence currently employ. than those we are rehearing The State’s motions for overruled. FREEMAN, Appellant, Lavaughn Elmer P.J., ONION, in result. concurs CAMPBELL, JJ., par- MILLER and Texas, Appellee. The STATE ticipating. No. 63863. McCORMICK, Judge, concurring. Texas, Appeals of of Criminal agree
I the standard for review en banc. rational trier of any case is whether essential ele- fact could have found the 9, 1983. March a reasonable beyond ments of the crime 6 and April Denied Rehearings applica- emphasize doubt. 1 write 20, 1983. July rea- outstanding tion of the “exclusion of is, analysis as stated hypotheses” sonable may one criteria which majority, arriving at the answer to the
applied result, but it should not be con- ultimate that ultimate stan- sidered an element of majority emphasizes, dard. And as the change analysis method of does not standard of review.
Logic dictates that if there is a “reasona-
ble
other than the
hypotheses”
accused,
then it cannot be said that
“beyond
shown
guilt has been
doubt.”
In Hankins v.
(Tex.Cr.App.1983),
recognized
we
direct and circumstantial evidence were
Thus, any
equal dignity.
be treated with
weave into the standard of
effort to
difference or
any exception
late review
or
of evidence
special
type
treatment
for one
logic.
lack of
the other will fail for
or
State, Tex.App.
Hampton
(1918);
(1925);
Tex.
OPINION
ONION, Presiding Judge. Appeal taken from a conviction for theft of of more property value ($200.00) two hundred dollars but less than ($10,000.00). ten thousand dollars Punish- (10) ment was assessed at ten jury years’ imprisonment and a fine five thou- ($5,000.00),probated. sand dollars appellant the two count indictment the liquid with the fertil- charged theft of izer August on or about 1978 and on or about 1978. convicted the on both jury granted
counts. The court new trial set conviction on count aside the based one. 40.09, See Article V.A.C.C.P. appeal then in effect. The is based on the out second arising count alleging theft on or about 1978. At we are with the the outset confronted challenge sufficiency of evidence. Kenneth Neal Smith was truck driver Phillips 66 Company fertilizer plant Katy. He knew Free- man when Freeman was a driver for truck another fertilizer which had at company kept Phillips one time its tanks on the Katy. seeing property in Smith recalled near Victo- January, ria. time in his blue At the Peterbilt truck with blue tank. white He was “breaking in” a new driver named did not know Howell. He last saw Phillip Howell. years lant some two or three before when company worked for another 1, 1978, About March saw Howell Smith Phillips on the storage who had tanks in a new Chevrolet pickup Phillips at the plant property. plant Katy. They the pick- talked about up. days Two later Howell and he returned Michel, *3 trooper of weight E.G. license and and went into Smith Houston to another Safety, of Public testified Department fertilizer company which knew Smith 17, 1978, stopped on he Howell out- August appellant and Howell hauled fertilizer. Ho- in the 1975 Peterbilt Hempstead side of permitted well pickup Smith to use the registered truck shown to be thereafter, Shortly weekend. Howell overweight. lant a citation for and issued give offered to pickup Smith the if Smith He to be on the “look- had been instructed assisted him in stealing fertilizer from Phil- weigh to it and stop out” for the truck and lips agreed 66. Smith and together they it, which he did. Thereafter, plant. checked out the no Katy Jordan, with the Harris K.R. detective action was taken August. August until On Force, fol- County Organized Crime Task 16, 1978, call, after phone a met Smith hours early morning lowed Howell in the Howell at the Rice Association Elevators in Au- Phillips plant when he left the on Katy about 11:30 Howell was in the p.m. stopped at Hills- gust 17th. After truck blue midnight and white Peterbilt. After officer, 17th, boro, Wayne on and fellow August and Howell went to Jordan Smith Jose, the Phillips plant. key used his to in their vehicle to Chico and proceeded Smith the pump room and Howell’s truck was residence and business loca- appellant’s liquid filled with wore fertilizer. Both was established. Howell tion. Surveillance gloves. later, 19th, nights August Two appellant He and arrived about 6:10 a.m. repeated and Howell the operation. Smith into tanks lo- liquid unloaded the fertilizer Again August on 21st more fertilizer was cated there. taken Smith and Howell. again 21st Jordan and Jose August On Smith related that he had last seen the surveil- again up followed Howell and set appellant that January; in Chico. Ho- appellant’s lance at residence present had not been the time of his heard the well did not arrive. Jordan conversations Howell or the time of with residence and then phone ring appellant’s thefts; only he and Howell were went to Para- saw leave. Jordan “in stealing cahoots” about the fertilizer. dise, leaving Howell only but observed Apparently as a result of earlier difficul- the Peterbilt truck. ties and á lie detector test had Smith Jones, of the law another member Ray agreed to cooperate with law enforcement team, on Au- enforcement followed Howell August officers. The thefts on 17th and 21st, while gust 17th and 21st. On the 21st were under the surveillance of the following, stop Jones observed Howell officers. Smith stated he notified the offi- a call. He followed phone truck and make August plans, ap- cers about the 19th but did not see it the truck to Paradise parently there was no surveillance on that appellant. unloaded nor did he observe date. Dumas, and Department, Police Katy Hal Scott, manager Phillips M.L. August Howell on another officer followed plant, testified he came to the on plant of Preston 21st to the business location 6,014 August gallons 17th and determined ap- Dumas observed Lowery in Paradise. taken, liquid fertilizer were it had help un- at the location and pellant arrive $4,500.00, August value of that on 21st Later he saw load truck. $4,420.00 liquid fertilizer of the value of give bills and some produce biga roll of give permission was taken. Scott did not Howell grand.” “Here is a anyone saying, for the fertilizer to be taken. Howell Scott stated he would be with tanks on night appellant’s back load was delivered to another load. 17,1978. he hand- Appellant stated pill bottle full of brass connec- ed Howell Lowery liquid Preston was in fertiliz- air tions for transmission hose er pipe business in did Paradise. He called Lowery’s place. 21st at Howell had business with from time to time. having truck air and informed him the During depleted the summer of he his This, testified, hose he was what trouble. stock of 10-34-0 fertilizer and called probably saw him hand Howell. officers appellant, who sold him small amount. He the conversation with Howell denied Appellant told did his Lowery he most of to him Officer Dumas or attributed Texas, business in South but at had times handing money. Howell coming trucks home sell empty and could Lowery freight fertilizer at a lower rate. knowledge liq- denied Appellant Lowery told he if had a truck 66, or Phillips uid fertilizer came from while, in the “coming in next little me *4 bring participated he in the thefts. some.” fertilizer Lowery Later noticed above, Appellant, as shown was indicted his tanks. When he spoke to appellant pursu- property for the actual theft it, appellant about him informed two Y.T.C.A., Code, 31.03(a) ant to Penal and § loads had been Lowery delivered. found (b)(1), receiving property and not for stolen paid appellant to be true and in two Y.T.C.A., Code, pursuant to Penal 31.- § installments. 03(a) (b)(2). charged and While the court Howell did not testify. abstractly parties, on the law of Bates, Jr.,
Leon the law to the facts the court submitted the testified for the defense acting alone, that he he appellant approximately jury had known case to as if were seven years, that he Equalizer despite appellant’s timely objection. had owned Park, Fertilizer located in Galena he Appellant participate did not with Howell often sold fertilizer to and that alleged in the actual of the appropriation hauling did for work him. Bates property. evidence insuffi Clearly the is sold his business but not inventory. his On appellant acting alone cient to show that August 12,1978, he sold 95 tons of 10-34-0 liquid had committed the theft of the fertil liquid to appellant $12,000.00. fertilizer for alleged izer in the second of the as count He did not personally know when the fertil- whether question indictment. remains izer was “picked up” from the storage tanks party was a to the crime. If in Galena Park he Long- because lived in it party is as a under guilty, view at the time. V.T.C.A., Code, 7.02(a)(2). Wygal Penal § Appellant testified he was in the State, (Tex.Cr.App. v. 555 468 S.W.2d fertilizer and feed business and in August, 1977). 1978, only Howell worked for had him. He 7.02(a)(2) provides: Said § agreement contract Equalizer to haul for person criminally responsible A“(a) also for Company, compa- hauled other conduct by for an offense committed 12, 1978, nies. He related that on of another if: he purchased liquid fertilizer from Bates. or “(2) promote intent to acting with He told Bates he not pick up offense, he assist the commission right away fertilizer would sell have to aids, solicits, directs, or at- encourages, it before he could for pay it. He also other to com- tempts person to aid the agreed to sell two loads fertilizer to ” offense; or .... mit Lowery about 14th or 15th. He determining whether an individu bring instructed Howell to load home crimi when he al is an offense and bears busy party otherwise to hauling therefor, may other the court companies. responsibility There were three to nal loads events, be from during delivered Bates. Two look and after the com loads were to State, sold Lowery Wygal v. to he paid. which was One of the offense. mission 454
supra;
parte Prior,
Ex
540
727
party
alleged
S.W.2d
to
offense as outlined in
(Tex.Cr.App.1976);
State,
Holloway
V.T.C.A.,
Code,
7.02,
v.
by
Penal
it is
virtue
(Tex.Cr.App.1975);
S.W.2d 165
v.
Bush
of circumstantial evidence.
State,
of the commission of (Tex.Cr.App.1981); the thefts. There is S.W.2d 591 Bonds v. *5 State, 528, no evidence to prior (Tex.Cr.App. show that to the com- 533 State, alleged 1978); mission of the theft v. Flores v. Stogsdill supra; that State, acted with intent to promote (Tex.Cr.App.1973); or assist the 489 901 S.W.2d offense, solicited, State, (Tex.Cr. commission of the encour- Kinkle v. 474 704 S.W.2d State, aged, directed, v. 447 App.1972); or aided others the com- Culmore S.W.2d State, mission of the evi- alleged (Tex.Cr.App.1969); offense. The 915 Brock 285 dence appellant helped (Tex.Cr.App.1956). does show that Ho- S.W.2d 745 well unload fertilizer from his truck into duty insuring This court has the of customer, Lowery, the tank of a Preston on except upon no one is convicted of a crime August 21, 1978, alleged the date of the proof. offense in the of the indict- second count court Judge As W.C. Davis wrote for the ment. deliv- Apparently another load was State, 533: supra, page in Bonds v. at 17th, ered to Lowery, and earlier on duty insuring “This has a of Howell, helped employee, his un- a crime except no one is convicted of load fertilizer into a at his storage tank doubt upon proof beyond reasonable of place business in Chico. On 21st case, in, evidence a circumstantial was seen to hand to Howell proof excluding hypotheses all other upon Lowery’s place appeared what to be a roll except appellant’s guilt. Easley of This grand.” bills and state “Here is a (Tex.Cr.App.1975).” 522 was in appears incriminating, review on appellate As to the matter of fertilizer business and Howell on circumstantial evi- convictions based was his only employee and authorized State, 444 dence, Ysasaga this court drive busi- appellant’s his truck. Most of 305, (Tex.Cr.App.1969), 308-309 S.W.2d Appellant ness was in Texas. had South wrote: purchased of fertilizer in about three loads on is wheth- “Ordinarily appeal the test Galena Park from Bates and had instructed from which the home when he er there was evidence bring Howell to the fertilizer which the (advised of the restrictions opportunity. jury had the of this testimo- Some condemning one upon them ny suspicion upon appellant, places casts but is law evidence) might reason- it sufficient? It is clear that if on circumstantial
455
2141,
States,
1,
57
ably
hy-
conclude that
437
98
every reasonable
United
U.S.
S.Ct.
pothesis
guilt
(1978);
excluded.
Greene v. Massey,
L.Ed.2d 1
“
2151,
(1978);
L.Ed.2d
U.S.
S.Ct.
cases,
‘In criminal
of con-
judgment
viction,
supra.
Bonds v.
to be sustained
must
appeal,
on
supported
produces
by evidence that
JJ.,
CAMPBELL,
certainty
guilt
moral
of the ac-
TOM G. DAVIS
to the exclusion of
reasonable
every
cused
result.
concur in the
doubt. The evidence will be insufficient
J.,
TEAGUE,
participating.
not
where,
although
sustain
conviction
leaving
not
suspi-
accused free from
ON STATE’S MOTIONS
OPINION
guilt,
cion of
it still
guilt
fails to show his
FOR REHEARING
to a moral certainty, so as to exclude all
doubt.
CLINTON, Judge.
“
ascertaining
‘In
of
whether the
file motion for rehearing
Leave to
accused
has been
to a
established
granted
they
in these causes and
the State
certainty,
moral
court will
appellate
were
order for us to deter-
consolidated
review
evidence in
light
pre-
mine
“standard for appellate
whether
sumption
innocent.
accused is
same for
evi-
review” is the
circumstantial
The Court will
presume any
not
acts
dence
and direct evidence cases.
cases
against the accused that are
shown to
question
sufficiency
The
of evidence
been
have
committed by him. Further-
impli-
criminal
sustain a state
more, a conviction will not be sustained
cates the Fourteenth Amendment. Jackson
if
appeal
on
the evidence
not suffi-
does
319 n.
S.Ct.
Virginia,
U.S.
ciently establish all material elements of
n.
It follows evi this have that circumstantial Court’s anal dence should not be an ultimate never held the circumstantial evidence tested re for review” from direct standard for ysis “standard different constitutes different evidence; applied kinds of that to in ultimately the standard in both view from be of fact cases.* evi- “any cases is whether rational trier direct evidence If State’s * inaccurate, opinions Literally technically that some of the Court have It is true attempt quoted language apparently originating is revealed as a writer’s from statement convey burden the notion that the State’s of pen of an author of Juris- or editor Texas beyond adducing proof doubt a reasonable prudence to the in circumstantial effect that conceptual corollary presumption of the but a appellate will “review evidence cases an court innocence, produce and a failure to that of evidentiary light presumption in that the evidence quantum operates to absolve the innocent,” the accused is 18 Tex.Jur. § appellant. Hill 118 Tex.Cr.R. [See 432. 787 (Tex.Cr.App.1931); Castro v. or or difference any exception dence an inference other than late review supports type one of evidence finding the essential elements of treatment for special of crime, rationally logic. no could for lack then trier of fact other fail of or the will beyond find the guilty accused reasonable this standard Lastly, irrespective this is of doubt —and true us, is the the final outcome cases before character of the evidence. Therefore, overruling I concur same. sum, no we are convinced there are rehearing for in each motions States’ analytical guidelines assaying better case. of fact have whether a rational trier essential crime
found the elements DAVIS, W.C. TOM G. DAVIS beyond any given a reasonable doubt TEAGUE, JJ., in this concurrence. join had upon circumstantial evidence employ. we currently those The are rehearing State’s motions
overruled. P.J.,
ONION, concurs in result. CAMPBELL, JJ., MILLER and par- not ticipating. DENBY, Perry Appellant, Como McCORMICK, Judge, concurring. agree I that the standard for review Texas, Appellee. STATE of any case is whether rational trier fact could have found the essential ele- No. 62561. ments of the crime beyond Texas, Appeals of of Criminal doubt. I write to emphasize applica- 3. Panel No. tion of the outstanding “exclusion of rea- is, sonable hypotheses” analysis as stated 16, 1983. March majority, one be may criteria which Rehearing July 1983. Denied applied in arriving at the answer to result, ultimate but it not con- should be
sidered an element of that ultimate stan- dard. as the majority emphasizes, And analysis
method of change does standard of review.
Logic dictates that if there is a “reasona- hypotheses” ble guilt than the accused, it then cannot be said “beyond has been shown
doubt.” In Hankins v. (Tex.Cr.App.1983), recognized we direct and circumstantial evidence were with equal dignity. Thus, any treated
effort to
into
weave
the standard of
*8
State,
183,
State,
291,
App.1924); Wales
(Tex.
v.
86
115 Tex.Cr.R.
Cr.App.1930);
Tex.App.
Jones v.
(Tex.Cr.App.1919);
Wilkie
28
S.W. 384
(Opinion
(Tex.Cr.App.1928)
490,
(Tex.Cr.
S.W.