Raymond B. JOHNSON, Appellant, v. The STATE of Texas, Appellee.
No. 60124.
Court of Criminal Appeals of Texas, Panel No. 2.
Oct. 22, 1980.
Although in Billie this Court did not explicitly hold that the State had the burden of proof regarding need, it expressly relied on the above-quoted portions of Britt discussing the burden of proof. In accordance with Billie, we now hold that the defendant‘s need for a transcription of the State‘s testimony from a former trial will be presumed, and the State has the burden of showing a lack of need if it desires to oppose the defendant‘s motion for a transcription of the testimony.
There is no showing in the record of this case that the transcription of the state‘s testimony from the former trial would not have been of value to appellant. Indeed, the length of the former trial and appellant‘s hampered attempts to impeach Carnahan, the State‘s chief witness, indicate that the transcription of the testimony would have been valuable to appellant.
The State argues that appellant had no need for the transcription because he was allowed access to the court reporter‘s shorthand notes from the former trial in order to impeach the State‘s witnesses. The record before us belies the State‘s claim. Apparently it was a lengthy process to locate, in each instance, the portion of the court reporter‘s notes that would serve to impeach Carnahan. As a result, the trial court forced appellant to delay his search of the notes until after the cessation of the day‘s proceedings, and appellant was unable to impeach Carnahan until the following day. The true effect of the impeachment was lost.
The Supreme Court in Britt recognized the inadequacy of the alternative suggested by the State in the present case. It stated:
We have repeatedly rejected the suggestion that in order to render effective assistance, counsel must have a perfect memory or keep exhaustive notes of the testimony given at trial. Moreover, we doubt that it would suffice to provide the defendant with limited access to the court reporter during the course of the second trial. That approach was aptly rejected as “too little and too late” in United States ex rel. Wilson v. McMann, 408 F.2d 896, 897 (CA2 1969). [footnote omitted] [emphasis added]
404 U.S. at 229, 92 S.Ct. at 434.
Furthermore, in Billie, supra, this Court rejected an alternative similar to the one suggested by the State in this case. We conclude that the procedure followed in this case did not constitute an adequate alternative, and the State has not met its burden of showing a lack of need for the transcription.
Due to the error committed, this cause must be reversed. Prior to retrial, appellant is entitled to a transcription of the testimony of the State‘s witnesses from his first trial.
The judgment is reversed and the cause remanded.
DALLY, J., concurs in result.
Henry Wade, Dist. Atty. and Maridell Templeton, Andy Anderson and Chris Milner, Asst. Dist. Attys., Dallas, Robert Huttash, State‘s Atty., Austin, for the State.
Before DOUGLAS, ROBERTS and CLINTON, JJ.
OPINION
DOUGLAS, Judge.
The conviction is for theft of property over the value of $200.00 and less than $10,000.00. Two prior convictions were alleged for enhancement purposes. The punishment was assessed at life.
The main contention on appeal is that the evidence is insufficient to support the conviction and that the indictment failed to prove ownership as alleged in the indictment.
The indictment alleged in substance that appellant knowingly and intentionally appropriated eight sweaters of the total value of $200 but less than $10,000 without the effective consent of Joe Martinez, the owner, with intent to deprive Joe Martinez of the property. Martinez was employed by Titches as a security guard.
The proof shows that appellant was arrested in a Titches store by security guards and that he had in his possession eight sweaters that belonged to Titches.
Appellant admitted that he had two of the sweaters in his possession but he had
He relies upon McGee v. State, 572 S.W.2d 723 (Tex.Cr.App.1978), and Commons v. State, 575 S.W.2d 518 (Tex.Cr.App. 1979).
Compton v. State, 607 S.W.2d 246 (1980), on State‘s motion for rehearing overruled McGee v. State, supra, which had held that “greater right to possession” theory applied only where both the owner and the actor had a joint interest in the property.
In the present case, the security guard was hired to protect the property and to keep it from being stolen and he had a greater right to possession of the sweaters by reason of such employment than the appellant who was proved to be the thief. Commons v. State, supra, is also overruled.
The other contentions that the evidence is insufficient to support the conviction are overruled. There was sufficient evidence to show that the property was taken without the consent of Martinez and that the employee testified that the retail value of the sweaters was over $200. There was no error in refusing to give a charge on circumstantial evidence because the appellant admitted taking two of the sweaters and he was in possession of all the sweaters that belonged to Titches when he was apprehended. The introduction of the sweaters with the price tags thereon was such evidence as would not require a reversal if it could be said there was any error to their admission.
All of the other contentions, including the contention that
The judgment is affirmed.
CLINTON, Judge, dissenting.
Having demonstrated in Compton v. State, 607 S.W.2d 246 (Tex.Cr.App.1980), that the “greater right to possession” theory conceived by the majority is without legislative sanction, there is no need to dwell on the point. Suffice it to say that the fiction of law created by the Compton majority is so contradictory to actual fact that principles of due process are implicated, e. g., fair notice.
Yesterday in Compton, supra, the “owner” was a corporate regional manager;1 today he is a security guard;2 tomorrow in Smallwood v. State, 607 S.W.2d 911 (Tex. Cr.App.1979), he will be a loading dock worker.3 Thus, when applied the theory turns into a fairy tale: An accused intends to deprive another of property that is not his—without consent that is not his to give. So much for the mandate to construe provisions of the penal code “according to the fair import of their terms, to promote justice,”
I must and do dissent.