Carlsen v. State

654 S.W.2d 444, 1983 Tex. Crim. App. LEXIS 943
CourtCourt of Criminal Appeals of Texas
DecidedMarch 1, 1983
Docket63987
StatusPublished
Cited by490 cases

This text of 654 S.W.2d 444 (Carlsen v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlsen v. State, 654 S.W.2d 444, 1983 Tex. Crim. App. LEXIS 943 (Tex. 1983).

Opinions

OPINION

MILLER, Judge.

This is an appeal from a conviction for theft of cattle. Punishment was assessed at ten years’ confinement and a $1,000 fine. Appellant in his sole ground of error challenges the sufficiency of the evidence. We reverse and order a judgment of acquittal be entered in this cause.

The State introduced six witnesses in its case-in-chief. Gerald Kent testified that he owned, or leased, a small ranching and farming operation in Fisher County. He owned over one hundred unbranded cows and calves including the “popular” black bald-faced or motley-faced calves produced by crossing the Hereford and Angus breeds. In October of 1978, he hired appellant, who to his knowledge was not engaged in the cattle business, to feed his cattle when he was unable to drive out to his ranch because of bad weather or poor health. Kent gave appellant one of the three keys to the locked pastures. Kent continued visiting the ranch and personally feeding the cattle at least every three days throughout the winter.

Some five months after hiring appellant, on Friday, March 23, 1979, Kent received a phone call from appellant who stated that it had rained heavily at the ranch and that Kent should stay at home and let appellant feed the cattle. Kent agreed and did not go to the ranch until the next Monday when [446]*446he, his wife and his foreman, G.W. (Slim) Hankins, drove out to feed the cattle. He testified that he became suspicious when he noted that it had apparently not rained and that there had been some unusual activity around the east corrals: the outside gate to one of the corrals had been opened, hay had been fed inside the corral, the ground was disturbed by fairly fresh animal tracks and his stock trailer contained cattle waste and had been moved from the south pasture to the east corrals. The next Tuesday, March 27, 1979, he and his foreman rounded up and counted the cows and discovered some 15 cows and calves were missing.

About 10 days later, Kent identified two of his missing calves at a ranch owned by Sam McGee near Electra. The calves were located in a pasture with approximately 300 other calves of a similar breed. He described the calves as “a black motley-faced steer calf” and “a black motley-faced bull calf.” He had given no one permission to remove or sell any of his cattle.

Foreman G.W. (Slim) Hankins testified that he worked for Kent, had a key to the pastures and had never given the key to anyone else.1 He was with Kent on the Monday when the unusual activity around the corrals was discovered, although he did not notice any unusual tracks. He also testified that he, along with Kent, had immediately identified the two calves on Sam McGee’s ranch as ones missing from Kent’s ranch. He described the calves as one “black bald-faced calf” and one “black motley-faced calf.”

Farmer James Ross testified that on Friday, March 16, 1979, he sold appellant a stock trailer, pictures of which were introduced into evidence.

Tommy Clay, foreman for Haskell Livestock Auction, identified appellant as the man who brought four calves to the auction on Saturday, March 17, 1979. Clay identified the stock trailer sold to appellant by Ross as the trailer appellant used on that Saturday. Clay testified that appellant told him all four animals were bulls when, in fact, one was a heifer. It was Clay’s opinion that appellant did not know much about cattle.

Clay’s job included assigning each animal a number beginning with zero according to the animal’s arrival at the weekly auction. Appellant’s cattle were numbered 1142, 1143,1144, and 1145. Clay identified a consignment sheet on which he had written descriptions of the calves. Calf 1143 was described as a “black motley-faced bull.” Calf 1145 was described as a “black white-faced bull.” Clay further testified that the descriptions, as written, would not be sufficient to distinguish the calves from others of the same “popular,” “common” breed. He also stated he could not now identify the calves. Calves 1143 and 1145 were sold to Sam McGee of Electra.

Gertrude Hopkins, a bookkeeper for the Haskell Livestock Auction, identified two checks made out to appellant as his proceeds from the sale of the calves and four scale tickets, one on each calf sold on March 17th. The scale tickets show that calf 1143, a black motley-faced bull, and calf 1145, a black white-faced steer, were sold to McGee.

The last State’s witness, Roy L. Montgomery, identified appellant as the man he [447]*447had sold a horse to at the Haskell Livestock Auction on March 17, 1979.

The case was submitted to the jury with an instruction on circumstantial evidence. A conviction based on circumstantial evidence must exclude every other reasonable hypothesis except the guilt of the accused. Moore v. State, 640 S.W.2d 300 (Tex.Cr.App.1982); Autry v. State, 626 S.W.2d 758 (Tex.Cr.App.1982); Swink v. State, 617 S.W.2d 203 (Tex.Cr.App.1981); Schershel v. State, 575 S.W.2d 548 (Tex.Cr.App.1979); Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977); Flores v. State, 551 S.W.2d 364 (Tex.Cr.App.1977). It is not required that the circumstances should, to a moral certainty, actually exclude every hypothesis that the act may have been committed by another person, but that the hypothesis is a reasonable one consistent with the circumstances and the facts proved. Moore, supra; Autry, supra; Swink, supra; Flores, supra. Each fact need not point directly and independently to the guilt of the accused, as the cumulative effect of all the incriminating facts may be sufficient to support the evidence. Stogsdill, supra; Flores, supra; Swink, supra. However, proof which amounts only to a strong suspicion or mere probability is insufficient. Moore, supra; Autry, supra; Schershel, supra; Stogsdill, supra.

Ordinarily we would examine the evidence in the light most favorable to the verdict. However, in reviewing a circumstantial evidence conviction we do not use that standard, and any language in prior cases to the contrary is hereby expressly disavowed. Instead, as we stated in Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969):

“In ascertaining whether the guilt of the accused has been established to a moral certainty, [we] will review the evidence in light of the presumption that the accused is innocent. [We] will not presume any acts against the accused that are not shown to have been committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged.”

Id. at 916. In determining whether incriminating circumstances are sufficient, each case must be tested by its own facts. Flores, supra.

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Bluebook (online)
654 S.W.2d 444, 1983 Tex. Crim. App. LEXIS 943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlsen-v-state-texcrimapp-1983.