Colson v. State

848 S.W.2d 328, 1993 Tex. App. LEXIS 486, 1993 WL 39911
CourtCourt of Appeals of Texas
DecidedFebruary 18, 1993
DocketNo. 07-92-0004-CR
StatusPublished
Cited by9 cases

This text of 848 S.W.2d 328 (Colson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colson v. State, 848 S.W.2d 328, 1993 Tex. App. LEXIS 486, 1993 WL 39911 (Tex. Ct. App. 1993).

Opinion

REYNOLDS, Chief Justice.

After a jury found appellant James Elmer Colson guilty of the offense of theft of property of the value of $750 or more but less than $20,000, the trial court assessed his punishment at confinement for 10 years, probated. With seven points of error, appellant attacks the sufficiency of the indictment, the court’s charge, and the evidence, as well as an evidentiary ruling of the court and the constitutionality of the penal statute upon which the prosecution was based. We will overrule the points of error and affirm.

Appellant’s points are more clearly understood by their association with the evidence. The evidence reveals that Lubbock Police Corporal Roy Green had known Kaye Leatherwood,1 an informant, for about three years, and she had assisted him some five to eight times in police undercover operations. He had arrested her for, and at the time of trial she was serving a probationary term for conviction of, passing forged checks.

Through the Crime Line, Leatherwood informed Green she had heard that appellant was a “fence.” Acting on the information, the police outfitted Leatherwood with a hidden microphone and transmitter, and furnished her with two pistols and two Zenith camcorders, each valued at $1,195. The camcorders were loaned to Green by Ken Davis, manager of Radio Lab.

[330]*330Leatherwood went to Bill’s Bees, a business operated by appellant, where there were three meetings, which were tape recorded by Green. At the second meeting, Leatherwood showed appellant the camcorders, which were in their original boxes, and the pistols; at the third meeting, she explicitly represented to appellant or told him that the property was stolen. She told him the property had come from ■California, not from Texas, and that he need not worry because it was “okay” here.

Later, in the afternoon and at appellant’s request, Leatherwood met him at a restaurant. Then, at appellant’s direction, they drove their respective vehicles a distance of two blocks, where Leatherwood transferred the property to appellant and received from him $300 cash. Afterwards, she gave the money to Green.

Appellant placed the property in his vehicle and transported it to his home. Subsequently, after he was given the Miranda warnings,2 appellant signed á written consent to search and led the officers to the property in his home. The camcorders were returned to Ken Davis, the owner.

During his direct testimony, appellant readily conceded that he bought the pistols and camcorders knowing that they were stolen. He explained he did so to recover property in general since he had lost property from break-ins at his business and the police would not do anything about it, and because Leatherwood said she needed the money to care for her child. On cross-examination, appellant first stated he did not know whether he was going to keep the property or sell it; but, when pressed, he said his wife would have made him give it back, and he would have called a member of the sheriff’s office, but “they got me before my head cleared up.”

By the material parts of its indictment, the State alleged that appellant did

intentionally appropriate, by acquiring and otherwise exercising control over property, to-wit: two (2) camcorders, of the value of $750 or more, but less than $20,000, which was then and there in the custody of Kaye Leatherwood, an agent of Roy Green, a law enforcement agent, after the said Kaye Leatherwood had explicitly represented to the said JAMES ELMER COLS [sic] that the said property was stolen, and the said JAMES ELMER COLSON appropriated said property believing it was stolen by another, and with the intent to deprive the owner, KEN DAVIS, of the property.

The indictment was premised upon that part of the penal statute denouncing theft, which provides that:

(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:
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(3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.

Tex. Penal Code Ann. § 31.03(a)-(b)(3) (Vernon 1989).3

Pretrial, appellant moved to quash the indictment on four grounds, two' of which were for the failure to “allege that the acts contained in the indictment were illegal or unlawful,” and to “allege the manner and means [the State] intends to use to show which of the negatives listed as vitiating consent in 31.01(4) Tex. Penal Code Ann. the [S]tate is relying on to negate consent.” 4 When appellant’s counsel presented the motion, he said, “And it will stand on its own. I do not need to argue it.”

The motion was overruled, prompting appellant’s first two points of error. By these points, which appellant groups for [331]*331presentation, he charges the court with error in not quashing the indictment because (1)it neither alleges that the property was appropriated “unlawfully” nor facts necessary to the same conclusion, and (2) it does not allege which of the statutory negatives vitiates consent.

The essence of appellant’s quashal motion, albeit not stated therein, was that the indictment was deficient in the notice of the nature of the charge against him. Obviously, his first-point complaint arises because the State did not adhere to the accepted practice of following the statute to allege that he “unlawfully” appropriated the property. Nevertheless, within the indictment are allegations charging, in brief, that property in the custody of a law enforcement agency was explicitly represented by a law enforcement agent to appellant as being stolen and he appropriated the property believing it was stolen by another. The meaning of the allegations is, by definition, that the appropriation was unlawful. Sec. 31.03(b)(3). Thus, the indictment imparted sufficient notice to appellant that the appropriation alleged was unlawful. The sufficiency of notice actually ends our inquiry, Adams v. State, 707 S.W.2d 900, 903 (Tex.Cr.App.1986); yet, we observe that because appellant did not explain to the trial court, nor offers a reason on appeal, why the absence of “unlawful” from the indictment impacted his defense, it cannot be said that the claimed notice deficiency prejudiced his substantial rights. Id. at 904. Appellant’s first point of error is overruled.

In pursuing his second contention, appellant interprets section 31.03 as evidencing the Legislature’s intent that an appropriation under section 31.03(b)(3) be without the owner’s effective consent to constitute a crime. He reasons his interpretation is in harmony with section 31.-01(4)(D), which provides that consent is not effective if given solely to detect the commission of an offense. Therefore, since the indictment does not allege his appropriation was “without the owner’s effective consent,” he concludes that his quashal motion should have been granted for lack of notice. Neither appellant’s interpretation nor his conclusion comports with current law.

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Bluebook (online)
848 S.W.2d 328, 1993 Tex. App. LEXIS 486, 1993 WL 39911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colson-v-state-texapp-1993.