*1 twо, ground appel Lunde’s house of error on 32nd It was about St. pm 7:00 when Daniel showed me a Colt lant claims that trial court abused its pistol. 38 Cal. It was black with black probation revoking appellant’s discretion in plastic handles with written on Colt because it was shown that them. The barrel was about five inches his living up probation to six conditiоns long. Teddy present Joe McDonald was contribution to making and was a valuable in the room at this time he he stated that society. supports finding a Evidence had called the Auction and found out that one condition of that the violated Paul McLaughlin was out of town and probation his to sustain the is sufficient that he and Daniel Lunde had wеnt and revoking ground order probation. broke into Paul’s house. Earlier on 5-8- error is overruled. 78 at about 4:00 I pm pawn went to a Finally, contention that shop on 4th st at about Uvalde with Ted- taking judicial notice of trial erred court dy pawned pocket Joe and he a silver Brous appellant’s trial is overruled. See watch grandfа- which he told me was his State, supra; sard v. Cleland v. Joe, Thursday, ther’s. On 5-11-78 Teddy (Tex.Cr.App.1978); Bradley v. S.W.2d 673 Barbara Grantham and I went back to State, supra; Bar supra; O’Hern v. pawn the same where shop Teddy Joe TV, Game, sold supra. a a TV a clock radio rie ntez heavy guy a snake statue to a set with a is affirmed. Teddy get Joe did moushtache.
rеceipt for At these items. this time he DALLY, J., in the result. concurs pickup also tried to watch he had pawned Monday, but he didn’t have the CLINTON, J., ONION, J., dissent. P. pawn ticket or identification so the man give wouldn’t it to him. When we
left Teddy Joe said he needed to pickup
the watch because it came from the bur-
glary. At this time he also said he had
taken jewelry the rest of the from the
burglary top and threw it on apart- his down,
ment house but it came so he alley building.
threw it in the behind his He gotten couple had said he had WELLS, Appellant, Hans rings watches, and three or four other guess and I away. this is what he threw dаy after Daniel Lunde showed me Texas, Appellee. The STATE of
the pistol dope. he said he had sold it for No. 57566. English can read and write the lan- guage completed and have the eleventh Texas, Appeals of Court of Criminal grade in school.” Panel No. 1. cross-examination, it was shown that felony probation witness was on Mаy burglary. Rehearing Dec. Next, Flowers, Scotty pawnshop, testified that watch,
brought pocket in a which was
shown burglary. to have been stolen in the
Flowers stated used the Petty” pawned
name “James Bill when he
the watch for We find the evidence
sufficient revoking pro- to sustain the order
bation.
201
alleged that H.
The indictment
question.
property.
stolen
was the
E. Butt
the owner
that
testified
Butt himself
corporation.
Company,
Grocery
H. E. Butt
in the
stock
the
owned all
Although Butt
the
he was not
proof failed.
The
alleged.
as
property,
Westmoland,
the
case
In the instant
brother
appellant’s
pellant, and the
Appliance Sales &
3-Wof
incorporators
Westmoland
Service,
appears that
Inc.
It
Wells brothers
provided
capital
corpo-
used
The
ran the business.
things
himself.
for
some
buy
rate funds to
was issued
A
of
certificate
brought
Secretary
of
Business
Texas
existence.
into
Although
Act, Article 3.04.
corpo-
have financed
may
Westmoland
Bates, Edinburg,
appellant.
James S.
Proof
ration,
corporation.
he was not
Mclnnis,
Atty.
B.
Dist.
and Robert
Oscar
proof
not
that
consent was
that he did not
Ralston,
Atty., Edinburg,
D.
Asst. Dist.
consent.
Austin,
Huttash,
Atty.,
Robert
State’s
that
frequently remarks
This Court
the State.
allege in the
practice to
proрer and better
was tak-
corporate property
indictment that
ONION,
J.,
Before
P.
and ROBERTS and
person who
of a natural
en from the control
CLINTON, JJ.
g.,E.
v.
corporation.
Castillo
acted for the
(Tex.Cr.App.1971).
572
OPINION
so. “It was
to do
Here
chose not
the State
allege
province
the state
...
of
ROBERTS, Judge.
doing so it assumed
ownership, but in
Hans Wells was convicted of three counts
owner-
establishing
proving
burden of
theft,
felony
degree.
of
the third
each a
has failed to
ship
alleged. The state
as
punishment
years’
The
at 5
court assessed
re-
such failure
perform
duty,
that
(probated)
confinement
and a fine of
Easley v.
of the case.”
quires a reversal
Each
count of the indictment
325,
156,
319
167 Tex.Crim.
in 1974 the
obtained
day
duty
(1959).
is true
The same
325
over
“from 3-W
exercised control
alleged. The trial
prove lack
consent
Inc.,
Service,
&
without
Sales
mo-
appellant’s
denying the
court
erred
owner,
Appli-
3-W
effective consent
verdict.
a directed
tion for
Service, Inc., and with intent
ance
&
Sales
of a
just remedy is the direction
The
deprive
property.”
the said owner of
v. United
Burks
acquittal.
judgment
argues
there
2150,
57
1, 18,
States,
S.Ct.
U.S.
Appli-
of 3-W
lack
consent
(1978).
Greene
L.Ed.2d
See
agree.
ance
We must
&
Inc.
Sales
98 S.Ct.
Massey,
U.S.
consent
only proof of
(1978).
L.Ed.2d 15
that he did
testimony of Ned Westmoland
taking of
cause is
and the
is reversed
corporation’s money.
judg-
еnter a
with directions to
remanded
acquittal.
ment of
Tex.Crim.
en
ownership
Before the court
banc.
(1959), proof of
S.W.2d 325
Appellant managed
OPINION ON
the business and wrote
STATE’S MOTION
FOR REHEARING
corporate
checks on
account.
DOUGLAS,
23, 1974,
Judge.
February
issued a
in the
check on the
account
submission,
original
panel
re-
$3,745.75
Compa-
Yoder Motor
amount оf
versed three
theft
convictions on the
*3
purchase
Westmo-
ny to
a 1972 Cadillac.
ground that
prove
State failed to
that
gave
to is-
appellant
land
no authorization
Service, Inc.,”
“3-W
&
the al-
check,
corporate
that
sue the
had no idea
leged owner,
did not consent to
Cadillac,
purchase
funds were used tо
appropriating corporate funds to his own
purchase
to
gave appellant
no consent
use.
agreement
the Cadillac. There was no
be-
panel
If the
adopted,
were
appellant
to buy
tween Westmoland and
corporate
would in effect make a
charter a
only had au-
automоbile and
steal,
license to
impossi-
because it would be
thority
“carry
to write checks to
on the
ble to commit
corporation.
theft
from a
business properly.” The certificate of title
A corporation
proper-
can be an owner of
to the Cadillac
issued in appellant’s
was
ty
V.T.C.A.,
Code,
under
Penal
Seсtion
name and not in “3-W’s” name.
1.07(24),
provides
“owner”
8, 1974,
August
issued a
person
“person”
means a
and that
means a
corporate
check
account
in the
corporation.
It
corpora-
is obvious that a
amount of
Van
to
Burkleo Motors
$227.43
give
tion cannot testify
testimony
direct
purchase go-cart.
a
Westmoland did not
оf lack of consent.
purchase
go-cart,
consent to the
of the
Appellant
incorporators
was one of three
find
out about it until
and stated
of “3-W Appliance
He
&
Inc.”.
“possibly
he could not
think” of
need
appropriated
corporate
funds to his own
go-cart.
for the business to have a
personal use.
is only
way
There
one
7, 1974,
February
issued a
lack of consent
the company and
check on
in the
corporate
account
is by circumstantial evidence.
If the
amount
to Peace and Thorton
$818.17
rely
State cannot
upon circumstantial evi-
pay
Lumber Yard to
for
worth of
$363.26
cases,
dence in such
one
steal
may
when
merchandise,
building
remodeling
corporation
alleged
as an owner without
purchased
among
things, previously
other
punishment.
fear of
agreement
there. There was no
that such
Appellant
initiated the
of starting
idea
use;
personal
purchased
materials be
appliance
business and a
Westmoland did not cоnsent
their
purpose.
was formed for that
The directors
Moreover,
purchase.
to Westmoland’s
appellant,
Ned
Westmoland and
materials were
knowledge, none of these
brother,
pellant’s
Don Wells. Westmoland
purposes.
ever used for business
“president”
corporation supplied
ownership can
This Court has held that
most,
all,
financing
if not
of the company’s
In Middleton v.
alleged
corporation.
be
in a
deposited
which was
in
(Tex.Cr.App.1972),
476 S.W.2d
Appellant
secretary-treasur-
account.
Refining Company was al-
Humble Oil and
managed
er of the company and
the busi-
showed
leged
proof
as the owner and the
ness. He drew a
His
weekly salаry.
broth-
ownership
premises
er
mer-
Don was a
and was a
president
vice
in
cury
question
compa-
to have been in the
salesman.
part
Westmoland took no active
ny. The conviction
affirmed.
the business.
created to deal in
167 Tex.Cr.R.
appliances
company
support
for the
and not for
does not
a rever-
аppellant’s personal
alleged:
corpo-
benefit. Prior to the
sal. The indictment
“[t]he
thefts,
longer
personal property
Don Wells was no
real
of H. E. Butt from
company’s
possession
Burgin
business.
Edens who was
associated with the
s
upholding appellant
authority
E. Butt. Giles
holding the same for the
H.
”
* *
*
proof
showed the stolen
case.
present
in the
conviction
corporation as
case.
was a
consent
Butt.
trict board of
whether
embezzlement
of
81 S.Ct.
funds.
and one of the five directors of
acquiescence.
failed to
trict.
in return for
ratify
Cr.App.1978), the Court held that water dis
Springs
ity
tion could be
S.W.2d
that directors
Court
bank’s
that,
pellant’s
In Carrillo v.
corporatiоn, and each of the other
Easley supports the conviction
Parnell
law. United States
In Giles v.
rectors as such had
consent to abstract the funds of
tion of the bank’s
directors testified that
out a
Fed.
showed
the
H. E.
“...
tive Even a directors
“in individual names” cannot act their itself, corporation,7 bind the board Co., Produсts Corp.
Star General Screw (Tex.Civ.App.Houston e.). writ n. r. Dist.], refused See
[1st Corporation in
Armstrong, “Launching a 1978).
Texas,” (December 41 Tex.B.J. 1085 more, delving into the matter
Without
enough pointed persuade has been out
me had more than a that “3-W” never such, not be
paper existence could
and was not funds. light,
this of conviction
should be reversed. respectfully dissent. JJ., PHILLIPS, join.
ROBERTS RASMUSSEN, Appellant,
Charles James *6 Texas, Appellee. STATE
No. 59398. Texas, Appeals
Court of Criminal 2.
Panel No.
June 1980.
Rehearing Nov. 1980. Denied guessing just evi- Lebowitz, what circumstantial Developments cise of Texas 6. “Recent I,” enough majority lack to show L.J. deems Law- 28 Southwestern dence Part text, developed in the consent. As I have Westmoland, di- as an individual that rector, even “agree” opinion lays majority down dubious “consent” moment, made, proposition purchases that in such as this “the is of no a case by way is in of consent ... is act unless he one cannot for a one evidence,” “fur- meeting and conсludes directors. circumstantial with the other a board proved Thus, lack of ther” that do as an what Westmoland did or did not evidence, inviting us to three utterly character of prior “see” worthless as evidence individual That, deci- That the decisions Court. W” did or did do. what “3 sions, oth- it, an case and the one embezzlement is the lesson understand cases, burglary their record evidence find (1959) ers case, help in the instant sufficient is of little mistakenly relies. upon tantalizing exer- with the and the reader left