McClain v. State

687 S.W.2d 350, 1985 Tex. Crim. App. LEXIS 1249

• Court: Court of Criminal Appeals of Texas
• Decided: April 3, 1985
• Docket: 699-84—McClain, 700-84—Navarro
• Status: Published

Opinions

OPINION ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

These are appeals from convictions for the offense of theft¹ in which the punishment for each appellant was assessed at three years and a $500.00 fine, probated.

In an unpublished opinion the Houston (1st) Court of Appeals found the evidence insufficient and ordered each appellant acquitted. We will review the basis in law for its finding.

The salient stipulated facts established Houston Police Officer S.R. Jett received information from Kevin Stuart, a Harris County Jail inmate, regarding appellants and their business operation, Gulf Coast Coins. Pursuant to this information, Jett checked out of the police department property room some personalty, including ten gold chains.

Pursuant to Jett’s instructions, Stuart took the property to appellants’ place of business, gave it to defendant Navarro and “had a discussion with him about selling the property to the codefendants at Gulf Coast Coins.” Stuart told Navarro that he had personally stolen the property. Stuart later spoke to defendant McClain, whom he told, “I risked my butt stealing this stuff and should get a better price.” McClain gave Stuart $140.00. Stuart left the property with appellants.

The State alleged by indictment that each appellant did:

“... on or about April 5, 1983, ... unlawfully appropriate by acquiring and otherwise exercising control over property, namely, ten gold chains, owned by S.R. Jett, hereafter styled the Complainant, of the value of over two hundred dollars and under ten thousand dollars, with the intent to deprive the Complainant of the property, and without the effective consent of the Complainant. * * * »

Addressing appellants’ contentions that the evidence was insufficient to support the trial court’s findings of guilt, the court of appeals observed:

“... [T]heft under Sec. 31.03(b)(1) requires ‘that the accused participate, either personally or acting as a party, in the initial unlawful appropriation of the property from its owner.’ Casey v. State, 633 S.W.2d 885 (Tex.Crim.App.1982). In Casey, the Court instructed:

‘If the accused does not take part in the initial unlawful appropriation but he does later acquire or exercise control over the previously stolen property knowing that it was stolen by another he is guilty only of theft under Sec. 31.03(b)(2). Such an interpretation of these sections is required by common sense and logic; any other interpretation of Sec. 31.03(b)(1) would allow conviction for non-criminal conduct.’

633 S.W.2d at 887.

The stipulated evidence in the instant case establishes that the appellants had no participation in the ‘initial unlawful appropriation’ (if there was one) of this property; indeed, the stipulations explicitly state that the ‘original owner of the ten gold chains and the exact facts regarding the original acquisition or appropriation of these ten gold chains is unknown to any witness in this [sic] eases.’ ”

We granted the State’s petition for discretionary review in order to address the contention that the reasoning underlying Casey is unsound and should be overruled.²

The court of appeals has undoubtedly applied Casey correctly to the instant cases. We now turn to the question presented: whether Casey was correctly decided.

The panel opinion in Casey construed our present theft statute to proscribe only “two distinct” types of conduct — what would have essentially constituted “theft” and “receiving and concealing” under old Articles 1410³ and 1430⁴ Vernon’s AnnJP.C. (1925), respectively — focusing primarily on the manner in which the actor acquired the property. Pursuant to that construction, Casey held that § 31.03(a) with (b)(1)⁵

“requires [in addition to the express elements of the offense,] that the accused participate, either personally or acting as a party in the initial unlawful [actual taking][⁶] of the property from its owner. See Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976).”

Casey, supra, at 887.

Having reviewed the stated rationale of Casey, we conclude its addition of an element in some cases — “participation in the initial acquisition” — to the constituents of theft as proscribed by the Legislature in § 31.03(a), is untenable.

The error of Casey is most graphically demonstrated in cases where the circumstances of the appellant’s acquisition of the property are unknown and unprovable. E.g., Mulchahey v. State, 574 S.W.2d 112 (Tex.Cr.App.1978). What was shown in Mulchahey, supra, was an exercise of control over several vehicles by the defendant, coupled with knowledge he did not have the respective owners’ consent and his intent to deprive the owners of the vehicles — -just what the theft statute prohibits. V.T.C.A. Penal Code, § 31.03(a).⁷ Mulchahey’s claim on appeal — that the State proved neither that he initially took the vehicles nor that he knew they were stolen when he acquired them — was rejected on the basis that the proscribing statute does not require such proof. Clearly, the evidence established Mulchahey committed a theft as contemplated by § 31.03(a).

The error of Casey is precipitated by its focus on the “manner of acquisition” of personal property, a focus the Legislature removed entirely from the theft statute in the 1974 penal code,⁸ then further refined in the 1975 legislative session.⁹ Just as it has been in the past recognized that the actor’s intent to “behefit himself or another” or to “withhold the property permanently” are not essential to commission of a theft, so too has it now been acknowledged that the “manner of acquisition” is inconsequential to the evil of a theft: the gravamen of theft is in depriving the true owner of the use, benefit, enjoyment or value of his property, without his consent.

Thus, the varying misleading emphases on aspects of acquisitive conduct proscribed under former penal codes were sifted out by the new, and a single offense was distilled from the common elements contained in each: clearly, if one exercises control over property knowing it is without the owner’s consent, and intending to deprive the owner of it, it matters not “how” the actor got the property, whether he intended to benefit himself or another, intended “permanently” to deprive the owner, etc.¹⁰

One of the single biggest problems faced by prosecutors under the old theft statutes was in proving “receiving and concealing” cases because the proof turned on whether the accused had knowledge of a circumstance surrounding his “receipt” of the property — that being that the property was stolen. Since this scienter is one not infer-able from the act of “receipt” of the property alone, there was often no way to convict “fences” or other persons dealing in stolen goods, even if the proof clearly established a knowing nonconsensual possession of the property to the exclusion of the true owner with the intent to deprive the owner of the property.

Thus, there were at least two eventual innovations in the new code designed specifically to assist in prosecuting such persons: (1) the “exercise of control” feature of “appropriation” which dispensed with the necessity of a “receipt” of property and, perforce, knowledge it was stolen at that very moment;¹¹ and (2) in the event the prosecution could prove the actor had participated in numerous similar receipts of property which, in fact, was stolen, § 31.-03(c)(1) allowed proof of those transactions to show knowledge of stolen status of the property. See also V.T.C.A. Penal Code, 31.03(c) (2) — (4).

“Few property transactions do not involve the acquisition of another’s property with intent to deprive him of it,” Committee Comment to § 31.03. Thus, the committee (and later the Legislature) recognized that what separates lawful acquisitive conduct from theft is knowledge of a crucial “circumstance surrounding the conduct” ¹² — that the acquisition is “without the owner’s consent.” The crime of theft requires the “forbidden conduct” element of the offense¹³ (“exercise of control over property”) to be accompanied by this “circumstance surrounding the conduct,” and V.T.C.A. Penal Code, § 6.03(b), requires proof of the actor’s knowledge of that “circumstance surrounding the conduct:” that the conduct is “without the owner’s consent.” With this crucial feature, the actor’s acquisitive conduct is clearly “unlawful.” See Lugo-Lugo v. State, 650 S.W.2d 72 (Tex.Cr.App.1983) (Opinion concurring on state’s motion for rehearing).¹⁴

It is logically apparent that one way to prove the actor had “knowledge” that his exercise of control over property was “without the owner’s consent” is to prove that at some point during his exercise of control he “knew it was stolen by another.” ¹⁵ Thus, knowing the property possessed “was stolen by another” is merely a subset of knowing the possession is “without the owner’s consent.” Casey, however, treated these “circumstances surrounding the conduct” as mutually exclusive.¹⁶

Not only is such a treatment patently illogical in fact, but it also conflicts with the express legislative history of the statute:

“Section 31.03(b)(2) provides that it is ‘unlawful’ to ... exercise control over property the owner [sic] knows is stolen; thus the receiver is guilty of theft under Section 31.03. ‘Receiving’ is included out of an abundance of caution rather than out of necessity, because one who obtains or exercises control over property he knows is stolen does so [knowing it is] without the owner’s effective consent as clearly as when he physically steals the property himself.”

Committee Comment to § 31.03.

Thus, it is clear that the general allegation that the conduct and accompanying mental state (appropriation with the intent to deprive) were done “unlawfully,” or even “without the owner’s consent,” would support a conviction for theft in which the proof established the actor’s “initial taking,” his “receipt knowing the property was stolen” or neither such mode of acquisition, so long as all elements of theft were proved. Section 31.03(b)(1) and (2) simply do not provide the “nature of the forbidden conduct;” instead, they are both only “circumstances surrounding the conduct,” which in no way constitute “acts or omissions” of the defendant. It follows that these provisions have evidentiary import only in terms of establishing the “unlawfulness” of the appropriation, and the defendant is not entitled to have them expressed in the State’s charging instrument as a matter of “form” under Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981) (Opinion on state’s motion for rehearing), much less substance.

In sum, neither the rationale nor holding of Casey is supported by logic or legal authority; in fact, Casey flies in the face of the Legislature’s express purpose in consolidating theft offenses. It attempts to reduce the offense of theft to “two separate and distinct ways in which the offense could be committed” which, with deference, is much too simplistic; there are myriad “ways in which the offense could be committed.” But Casey attempted to elevate mere matters of proof to “distinct elements” comprising “two separate” offenses, then tacked on a new “element of the offense” (“initial actual taking”). There is certainly no principled reason, compelling or even weak, to revive the very problems the Legislature sought to eliminate in the new penal code, as well as create new ones.

Casey is overruled.

This cause is remanded to the court of appeals for determination of appellants’ contention that the evidence fails to establish their exercise of control of the affected property was “without the owner’s effective consent.”

It is so ordered.

1 . V.T.C.A. Penal Code, Section 31.03, [hereafter "§ 31.03"] provides in relevant part:

“(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of the property.

(b) Appropriation of property is unlawful if:

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

(2) the property is stolen and the actor appropriates the property knowing it was stolen by another.”

2 . In the alternative, the State contends that if Casey is determined to be correct the State should not be precluded from retrying appellants under § 31.03(a) and (b)(2) because Casey treats these provisions as proscribing a separate and distinct theft offense from the one prosecuted in the instant case under § 31.03(a) and (b)(1). Though we also granted review on this ground our disposition of the first ground renders its treatment unnecessary.

3 . " ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and tó appropriate it to the use or benefit of the person taking.” (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

4 . "Whoever shall receive or conceal property which has been acquired by another in such a manner as that the acquisition comes within the meaning of the term theft, knowing the same to have been so acquired shall be punished in the same manner as if he had stolen the property.”

5 . See n. 1 for recitation of the proscription against theft.

6 . Though Casey used the word "appropriation,” one only need go to the case then cited, Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976), to see the intended meaning was "actual taking.”

7 . There is a continuing misconception among the bench and bar that the word "appropriate” means (or at least connotes) some sort of "taking” or "transfer” of property (other than real property). It does not. "Appropriate” means any "exercise of control over” the personalty in question; it is more akin to "possession” than to a “transfer" under the 1974 penal code. See § 31.01(5)(B).

8 . The unlawful manner of acquisition of property was tacitly acknowledged to be the gravamen of other offenses such as robbery and burglary where obtaining property by force, violence or unlawful entry was seen to be the primary evil sought to be prevented, and thus the focus of those crimes.

9 . The original form of § 31.03(a) and (b) made a distinction between two types of alternative "forbidden conduct” elements of theft; "obtains” and "exercises control over" property. Both of these alternatives were removed by the 1975 amendment which substituted the single forbidden conduct element "appropriates.” The definition of “obtain” contained originally in § 31.01(5) became part of the definition of “appropriate,” amending the same provision in 1975, effective September 1, 1975. Casey neglected this clear manifestation of the Legislature’s intent to remove the "manner of acquisition” from the offense of theft.

10 .Wholly ignored by the Casey panel is the unambiguous declaration by the Legislature that “theft constitutes a single offense superced-ing the separate offenses previously known as [among others] theft ... and receiving or concealing stolen property.” V.T.C.A. Penal Code, § 31.02.

Section 31.02 — like 31.01 and 31.03 — was adopted in 1973 as proposed by the State Bar Committee on Revision of the Penal Code, final Draft 1970. That Committee explained its intent in consolidating all theft offenses in § 31.-02;

"No part of the penal code has produced more confusion, more appellate litigation, and more reversals on [matters] unrelated to the actor's guilt or innocence than the multitude of offenses proscribing criminal acquisitions of another's property. Although the theft offenses attempt to separate guilty from innocent acquisitions, ... their effect all too often is to embroil the courts in nice questions about the appropriateness of conviction under one offense label as opposed to another. The present distinctions ... are unnecessary for establishing the point at which acquisitive conduct becomes criminal .they do, however. place unnecessary obstacles before conviction of the guilty.

For these reasons, the committee decided to consolidate most theft offenses into a single, comprehensive offense aimed at the harm that accompanies the acquisitive conduct, however, the acquisition is accomplished. * * Theft is a single offense with a uniform culpable mental state, a uniform result, uniform penalties, and uniform defenses, all of which focus on culpability rather than, as under present law, whether the State is pursuing the defendant under the appropriate offense label.”

Texas Penal Code: A Proposed Revision, Final Draft 1970, Committee Comment to § 31.02 [hereinafter Committee Comment].

11 ."['Exercising control’] covers not only purse snatching, shoplifting, and other thefts by strangers, but also receiving or concealing stolen property and the conduct of persons who possess another’s property with consent but exercise their possessory rights in a manner that deprives the owner of the property.”

12 . See V.T.C.A. Penal Code, § 6.03.

13 . V.T.C.A. Penal Code, § 1.07.

14 . Consideration of the operation of § 6.03, as explicated in Lugo-Lugo, supra, reveals the concern of the Casey panel — that its interpretation is the only thing standing between convicting innocent persons of theft — to be totally unfounded.

15 . It simply cannot be argued with any logic that a person who exercises control over property he knows was stolen by another does not know his exercise is without the true owner’s consent.

16 . The assertion in Casey at 886-887 that "the Legislature while creating only one offense provided two separate and distinct ways in which the offense could be committed” is not only an inherent semantical contradiction, but is also wrong as a matter of reality.