*1 Lynne McMILLAN, Appellant, Gari Texas, Appellee.
STATE
No. 11-86-256-CR. Texas,
Court
Eastland.
June 1988. Brown, Kennedy,
Stan Brown Abi- lene, appellant. for Eidson, Atty., James Criminal Dist. Abi- lene, appellee.
OPINION ARNOT, Justice. McMillan, jury Lynne found Gari
appellant,
theft,
guilty of the offense of
punishment
assessed
at confinement for
$2,250,
years
five
and a fine of
and recom-
probation
mended
of the confinement.
Appellant urges there was insuffi
jury’s
cient evidence to sustain the
verdict
*2
guilty
reviewing
of
In
great-uncle
appellant’s
that she was
theft.
Mr. Briscoe is a
of
evidence,
sufficiency
appel
an
Appellant
husband.
and her husband ar-
required
immediately
late court is
to look at the evi
rived late in the afternoon and
light
dence in the
most
to the
get
favorable
went to the bathroom. To
to the bath-
any
room,
if
they
through
verdict to determine
rational trier of
went
the bedroom
fact could have found the
ele
Neylands
staying
essential
where the
were
and
beyond
ments of the crime
jewelry
a reasonable where the
had been left.
State,
doubt. Dunn v.
Mr. Briscoe’s ill in who was King, complainant, heavy In a social they grocery went store. Mr. drinker, passed out at his home in the Briscoe and Mr. watched football defendant, presence of the a woman ac- games and never left the Briscoes’ house quaintance Sleeping he had met in a bar. day. than Neylands, appel- Other hours, for 15 he to find the defend- awoke lant, husband, and her no one else visited many personal possessions ant and his day the Briscoe home the the loss occurred. located, gone. cooperated When defendant testified she last her saw police found in with the and was never returning jewelry p.m. about 3:00 after possession any complainant’s proper- from the errands. ty. only property retrieved was a cam- Appellant driving by recorder later found husband were era and video Grange complainant place from Year’s at his of business. Un- La Lubbock New us, stopped Day. They at the Briscoes’ home. like the case before the evidence King did not show that affecting charge the defendant against the defend house, could have had access to the ant, victim’s and without detriment to the indict car, jewelry, during and billfold the 15 ment surplusage, are treated as mere hours. The court found that the 15-hour may entirely disregarded.” period time was sufficient to allow for the Ann.P.C., ed., 517, p. Branch’s Sec. intervening parties. acts of third way, may Stated another it be said that if not of that Allen, victim, In defendant detained the legally which validity essential to the clerk, a convenience store in a walk-in cool- *3 indictment, of the information or com compatriot er while a went the behind plaint, unnecessary allegations words or apparently counter and took the contents may rejected surplusage. be as purse. of the victim’s Because the defend- [See State, (Tex.Cr. compatriot and his Collins v. S.W.2d 168 ant were not the App.1973) to visit customers the store and to have ] purse, access to the victim’s the court held
that the circumstantial evidence was insuf- is, however, recognized There a well support ficient to the conviction. exception general to the rule discussed us, In appellant the case before the above, and that is where the unneces- her alone husband had access to the bed- sary descriptive matter is that which of jewelry Although room where the was. legally charge is essential to a crime it appellant and her husband each denied tak- proven must be as alleged, though even ing diamond, the no present one else was in needlessly stated. See 13 Texas Law Day the house on New Year’s other than (note); Ann.P.C., Review 489 1 Branch’s appellant husband, the and her the owners ed., 518, 491-498, pp. Sec. and cases house, of the and the victim and her hus- added) (Emphasis there cited. Neyland jewelry band. Mrs. last saw her per- It is well that where established a p.m. 3:00 about and noticed the diamond son, place thing necessary or to be men- missing departure within minutes of the in appellant tioned the indictment is with and her husband. No one other described unnecessary particularity, than appellant and her husband entered the all circum- description time the diamond proven, bedroom between the stances of must be 511, was last it was discovered seen and when Smith v. 107 Tex.Cr.R. changed missing. Appellant’s (1927), af- rejected behavior S.W. 286 and cannot be trip ter her last to the bathroom. surplusage, they as for are thus made identity. Maples essential to the Looking light in most at the evidence 124 Tex.Cr.R. find a prosecution, favorable to the we that (1933). Thus, pleader if the makes un- ap- rational trier of fact could have found necessary allegations descriptive of the pellant guilty beyond a reasonable doubt identity charged, of the offense it in- is parties. Appellant’s under the first law of upon the cumbent State to establish such point of error is overruled. allegations by evidence. McClure v. Appellant and her husband were indicted 163 Tex.Cr.R. (1) carat diamond.” As for theft of “a one point, appellant her next contends that the weight descrip- The of the diamond is a prove in its to this State failed burden and, pled, averment since tive must be indictment. descriptive averment proved surplus- and cannot be treated as agree. We age. general governing proof The rules are set out in averments Bur question us is before whether (Tex.Cr.App. witness,
rell v. competent to Neyland, lay as a 1975): weight give opinion her as to the of the examine the evidence “[ajllegations not diamond. We must
It is well settled that
offense,
concerning
weight of the
in this case
essential to constitute the
Neyland
unrecovered stolen diamond. Mr.
might
entirely
which
omitted without
bought
testified he
as
en-
testify
weighed
diamond
an
be able to
that her diamond
gagement ring for his
wife. Mrs.
disagree
one carat. We
with the State’s
testified she owned the diamond for 37 interpretation
Sullivan,
Sullivan.
In
years. When she
described
stone as a
knowledge
the owner had no actual
carat,
weight
diamond and the
as one
trial
did,
market value of the stolen rifle. He
objected
counsel
upon hearsay.
based
however,
personal
know from a
observa-
Upon cross-examination,
ad-
unique
tion that it was a
rifle and
it
that
weighed
mitted that she had never
the dia- had been fired and used and was
able
opinion
mond and
as to its size
though
estimate its worth at
Even
$500.
upon
was based
what others had told her
in Sullivan could not testi-
complainant
appraised
jeweler
or
A
it.
testified
fy as to the market value of the rifle based
impossible
that it was
eye
the naked
willing-seller
situation,
willing-buyer
weight
determine the
of the diamond.
owner,
requisite personal
he had the
knowledge
give
opinion
an
as to the
opinions
witnesses,
lay
opinion
value of his rifle. His
was not
competent,
concerning
when
are admissible
solely upon hearsay.
based
size,
age,
quality, time,
estimates of
*4
speed.
estimates of distance and
The com
Lay
opinion testimony
witness
petency of a witness is established if he has
analogous
lay opinion testimony
value is
requisite personal
knowledge of the
weight.
In each case the witness must
subject matter. See TEX.R.CRIM.EVID.
personal knowledge.
have
It cannot be
701;
Cass v.
(Tex.Cr.
solely
hearsay. By
based
on
her own testi
Denham v.
App.1984);
574 S.W.2d
mony,
Mrs.
stated she had never
RAY,
129 (Tex.Cr.App.1978); 2 R.
TEXAS
personally weighed the diamond. She
LAW OF EVIDENCE CIVIL AND CRIMI
opinion solely
based her
on what others
(Texas
NAL sec. 1436
Practice Series 3d
Having pled
told her.
the diamond
1980).
ed.
(1) carat,”
charged
“one
was
the State was
urges
lay
State
person
that a
The
proving
weight.
with the burden of
should
opinion
be able to offer an
as to
Neyland’s opinion
weight
as to the
weight in
way
lay person
the same
that a
solely
hearsay
diamond was based
opinion
can offer an
as to value. See Sulli
was, therefore,
inadmissible over
van v.
(Tex.Cr.App.
timely objection. TEX.R.CRIM.EVID. 802.
1986). While it is true
that witness need Appellant’s
point
second
of error is sus
expert
not be an
in any technical sense in
tained.
order
opinion
for his
or estimate of values
received,
must, however,
to be
the witness
appellant’s
point
Since
second
is
possess:
(1) a knowledge of the market
sustained,
necessary
it is not
to address the
one; (2)
value if there
knowledge
is
his
point.
though
third
Even
evidence
(3)
must be of values in
vicinity;
in
the record to the
is
averment
knowledge
his
degree
must
in some
evidence,
excluded
inadmissible
the re
upon personal
based
and not
observation
versal is considered as a reversal for trial
solely
RAY,
hearsay.
from
2 R.
TEXAS
States,
error. See Burks v.
United
437
LAW OF EVIDENCE CIVIL AND CRIMI
1,
2141,
(1978);
U.S.
98 S.Ct.
versed, the matter remanded for new
trial.
DICKENSON, Justice, dissenting. holding
I dissent to the Court’s that the missing ring
owner of the diamond should permitted testify
not have been as to her
ring’s weight. majority As noted in the
opinion, testimony prop- an owner’s of the
erty’s analogous value is to an owner’s
testimony property’s weight. in
Court Criminal noted Sulli-
van v. 905 at 908
(Tex.Cr.App.1986): long
It has been the in this rule State property competent
that the owner of testify as to the value of his own
property.
Consequently, I would hold that the trial overruling objection
court did not err testimony.
to this judgment of the trial court should be
affirmed. ASSOCIATES,
PARK CREEK
LTD., Appellant, DeLane, Gayla
Terri WALKER Group, and Walker-DeLane
d/b/a Walker,
Stephen Appellees. L. 05-87-01189-CV.
No. Texas,
Court of
Dallas.
July 1988.
Rehearing Aug. 1988. Denied