Berg v. State

747 S.W.2d 800, 1984 Tex. Crim. App. LEXIS 834, 1984 WL 13

• Court: Court of Criminal Appeals of Texas
• Decided: November 14, 1984
• Docket: 451-83
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction of third degree felony theft of a diamond under V.T.C.A. Penal Code, § 31.03(a) and (b)(1). The punishment is three years confinement in the Texas Department of Corrections. On direct appeal, the Eastland Court of Appeals affirmed appellant’s conviction in an unpublished opinion delivered March 24, 1983. We granted appellant’s supplemental petition for discretionary review to determine whether the evidence is sufficient to sustain his conviction. We affirm.

The evidence, reviewed in a light most favorable to the verdict, reveals that Karen Bonham’s residence was burglarized by a juvenile on July 9th, 1980. Among other things, a wedding set consisting of a wedding band and engagement ring were stolen. The engagement ring contained a one-quarter carat diamond.

Subsequent investigation of the burglary, including discussion with the juvenile, led the investigating officer to the Goldsmith Shop, an Abilene jewelry store managed and co-owned by the appellant. The officer’s examination of the jeweler’s records revealed that on July 11, 1980, the appellant had issued a twenty-three dollar check for “scrap cash.” The evidence establishes that this check was used to purchase the rings from the juvenile burglar. The investigating officer then directed Bon-ham to the Goldsmith Shop in her search for the missing jewelry.

On July 17, 1980, Bonham went to the Goldsmith Shop and discussed with appellant the possibility that he was in possession of her rings. “After much persuasion,” appellant allowed Bonham to search through scrap metal that had been packaged for the smelter. Bonham immediately recognized her rings. The engagement ring no longer contained the one-quarter carat diamond, as two of the mounting prongs were clipped away and the diamond had been removed. The evidence establishes that the diamond was in the ring when it entered appellant’s possession.¹ Bonham testified that she then described the diamond to appellant, who said he would contact her later.

The next day, on July 18,1980, the appellant phoned Bonham and informed her she could pick up the rings. Appellant gave her a ziplock bag containing her rings and a stone wrapped in Scotch tape. Bonham testified that she believed the stone to be the diamond originally mounted in her engagement ring.

Although the package containing the stone bore the notation “DIAMOND”, subsequent events revealed that it was an inexpensive cubic zirconia. Bonham testified that she did not tell appellant she would accept a cubic zirconia in replacement for her diamond.

The evidence establishes that the value of the missing one-quarter carat diamond exceeded $200, but was less than $10,000.

In a two-count indictment, appellant was charged with theft in violation of V.T.C.A. Penal Code, § 31.03(a) and (b)(1). The first count alleged theft of the wedding set on July 11, 1980, the day appellant purchased the rings from the juvenile. The second count alleged theft of the diamond on July 18, 1980, the day appellant substituted a cubic zirconia for Bonham’s diamond. The trial court submitted the case to the jury under the second count of the indictment, but not the first.

Under the new penal code, there are two distinct methods of committing theft.² Theft may be committed by appropriating stolen property knowing it was stolen by another, § 31.03(b)(2), or theft may be committed by appropriating the owner’s property without his effective consent, § 31.03(b)(1).

In Casey v. State, 633 S.W.2d 885 (Tex.Cr.App.1982), this Court held that when the proof at trial shows a theft by appropriating stolen property knowing it was stolen by another, 31.03(b)(2), but theft is alleged under 31.03(b)(1), the evidence is insufficient to sustain the conviction. Thus, if the evidence establishes only a transfer of stolen property, and fails to show that the defendant was involved in the initial appropriation from the owner, the State must proceed under 31.03(b)(2) or the conviction will be reversed.

In a supplemental petition for discretionary review, appellant contends that the evidence is insufficient to support the verdict. Specifically, appellant relies on Casey and asserts that the State has failed to prove that appellant was involved, either personally or acting as a party, in the initial appropriation of the property from its owner. While appellant’s assertion is correct, his reliance on Casey is misplaced.

The appellant in this case was not tried for theft based on the transfer of stolen property to him, as was the defendant in Casey. On the contrary, appellant was tried for theft based on his own appropriation of the diamond after it was in his possession. The theory was not that appellant was a party to the theft by the juvenile, but that the appellant was a principal in the subsequent theft by deception.³

Under Casey, and the case as submitted to the jury, the appellant held the rings and diamond lawfully on July 11, 1980, the day he purchased them from the juvenile burglar. At that time, under Casey, he was not guilty of appropriating property without the owner’s effective consent.

On July 17, 1980, appellant learned that Bonham had a greater right to possess it. She was the true owner. V.T.C.A. Penal Code, § 1.07(24).

The next day, July 18, 1980, with knowledge of the circumstances, V.T.C.A. Penal Code, § 6.03(b), appellant gave Bon-ham a cubic zirconia instead of her diamond.⁴ That was the day he committed theft. There is no need to show he was a party to the burglary. Under these facts appellant committed a separate offense when he switched the stones. And as the second count of the indictment alleged, and the jury found by its unanimous verdict, on July 18, 1980, appellant did then and there unlawfully, knowingly and intentionally appropriate a diamond without the effective consent of the owner with intent to deprive her of it.

The verdict is supported by the evidence, and the judgments of the Court of Appeals and the trial court are affirmed.

Although the case was submitted to the jury on the second count of the indictment which alleged the offense was committed July 18, 1980, and that was the verdict reached by the jury, we note that the judgment of the court erroneously recites that the offense was committed on July 11, 1980.

When the judgment is contrary to the verdict, this Court has authority to reform and correct a judgment to reflect the true finding of the fact finder. Article 44.24(b), V.A.C.C.P.; Milczanowski v. State, 645 S.W.2d 445 (Tex.Cr.App.1983); Joles v. State, 563 S.W.2d 619 (Tex.Cr.App.1978); Teamer v. State, 557 S.W.2d 110 (Tex.Cr.App.1977).

It is so ordered.

TEAGUE, J., dissents.

1 . In appellant’s original petition for discretionary review, he alleges that the evidence is insufficient to establish the diamond was in the ring when it entered his possession. Although we did not grant appellant’s original petition for discretionary review, we pause to note the following.

State rebuttal witness Cindy Mahoney, a former employee of the appellant, was present on the day appellant purchased the jewelry from the juvenile. She testified that after appellant had purchased the rings, she examined the engagement ring with an "eye loop" (jeweler’s eyepiece). It contained a one-quarter carat diamond.

Although appellant denied the ring contained a diamond when he purchased it, the jury, as the trier of fact, was charged with determining truthfulness. Ables v. State, 519 S.W.2d 464 (Tex.Cr.App.1975); Johnson v. State, 503 S.W.2d 788 (Tex.Cr.App.1974).

2 . V.T.C.A. Penal Code, § 31.03, provides in pertinent part:

"(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property, (b) Appropriation of property is unlawful if:

(1) it is without the owner’s effective consent; or

(2) the property is stolen and the áctor appropriates the property knowing it was stolen by another."

3 . Consent is not effective if induced by deception. V.T.C.A. Penal Code, § 31.01(4)(A).

4 .The evidence establishes that the diamond was in the ring when it came into appellant’s store on July 11. Appellant denies he received the diamond at that time. On July 17, Bonham told appellant that her ring had originally contained a diamond. The next day, appellant furnished Bonham with a cubic zirconia, instead of a diamond.

Viewed in a light most favorable to the verdict, this circumstantial evidence is sufficient to support a jury’s belief that appellant continued to exercise control over the diamond on July 18, 1980. Appropriate means to acquire or otherwise exercise control over property. V.T.C.A. Penal Code, § 31.01(5)(B).