McMillan v. State

754 S.W.2d 422, 1988 Tex. App. LEXIS 3457, 1988 WL 71223
CourtCourt of Appeals of Texas
DecidedJune 30, 1988
Docket11-86-256-CR
StatusPublished
Cited by18 cases

This text of 754 S.W.2d 422 (McMillan 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
McMillan v. State, 754 S.W.2d 422, 1988 Tex. App. LEXIS 3457, 1988 WL 71223 (Tex. Ct. App. 1988).

Opinions

OPINION

ARNOT, Justice.

The jury found Gari Lynne McMillan, appellant, guilty of the offense of theft, assessed punishment at confinement for five years and a fine of $2,250, and recommended probation of the confinement.

Appellant urges there was insufficient evidence to sustain the jury’s verdict [423]*423that she was guilty of theft. In reviewing the sufficiency of the evidence, an appellate court is required to look at the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Dunn v. State, 721 S.W.2d 325 (Tex.Cr.App.1986); Chambers v. State, 711 S.W.2d 240 (Tex.Cr.App.1986); Houston v. State, 663 S.W.2d 455 (Tex.Cr.App.1984). In applying the standard to circumstantial evidence cases, the courts employ a process of elimination to determine whether the evidence excludes all other reasonable hypotheses of appellant’s guilt. If the evidence supports an inference other than the guilt of appellant, a finding of guilty beyond a reasonable doubt is not a rational finding. Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983).

Appellant and her husband were both indicted for the theft of Mrs. Nita Ney-land’s diamond. They were tried jointly, and the jury was instructed on the law of parties. Appellant and her husband were both convicted of the offense.

Mrs. Neyland and Mrs. Avalene Briscoe are sisters. Mr. and Mrs. Paul Neyland stay with Mr. and Mrs. R.C. Briscoe each New Year’s Day and watch football bowl games and visit. On the day of the incident, Mrs. Neyland had dressed casually, leaving her jewelry on a dressing table in the bedroom. Her jewelry included a pendant which held a diamond which had originally been mounted in Mrs. Neyland’s wedding ring. That day, she and Mrs. Briscoe ran several errands. They took dinner to Mr. Briscoe’s nephew who was ill in bed, and they went to a grocery store. Mr. Briscoe and Mr. Neyland watched football games and never left the Briscoes’ house that day. Other than the Neylands, appellant, and her husband, no one else visited the Briscoe home the day the loss occurred. Mrs. Neyland testified she last saw her jewelry about 3:00 p.m. after returning from the errands.

Appellant and her husband were driving from La Grange to Lubbock on New Year’s Day. They stopped at the Briscoes’ home. Mr. Briscoe is a great-uncle of appellant’s husband. Appellant and her husband arrived late in the afternoon and immediately went to the bathroom. To get to the bathroom, they went through the bedroom where the Neylands were staying and where the jewelry had been left.

Afterwards, appellant’s husband went to the den to watch football games with Mr. Briscoe and Mr. Neyland. Appellant went to the kitchen to visit with the ladies. Appellant and her husband were invited to stay for dinner. After dinner, they left for Lubbock. Before leaving, appellant, who was five months pregnant, again went to use the bathroom. Mrs. Neyland observed that appellant acted “nervous” before leaving. Mrs. Briscoe noticed that appellant seemed “real jittery.” Three or four minutes after the couple’s departure, Mrs. Neyland went to her bedroom where she discovered her diamond was missing. The pendant remained on the dressing table along with other jewelry of Mrs. Neyland, but the diamond was gone. She searched the floor to see if the stone could have fallen out. A jeweler who examined the pendant stated that the mounting appeared to have been pried open. The diamond was never located.

Appellant argues that mere presence in the vicinity of a crime is not alone sufficient to sustain a conviction, urging as authority Allen v. State, 686 S.W.2d 685 (Tex.App.—San Antonio 1985, no pet’n); and King v. State, 712 S.W.2d 799 (Tex.App.—Houston [1st Dist.] 1986, pet’n ref'd). We disagree that these cases are controlling.

In King, the complainant, a heavy social drinker, passed out at his home in the presence of the defendant, a woman acquaintance he had met in a bar. Sleeping for 15 hours, he awoke to find the defendant and many of his personal possessions gone. When located, defendant cooperated with the police and was never found in possession of any of complainant’s property. The only property retrieved was a camera and video recorder later found by the complainant at his place of business. Unlike the case before us, the evidence in [424]*424King did not show that only the defendant could have had access to the victim’s house, jewelry, car, and billfold during the 15 hours. The court found that the 15-hour time period was sufficient to allow for the intervening acts of third parties.

In Allen, defendant detained the victim, a convenience store clerk, in a walk-in cooler while a compatriot went behind the counter and apparently took the contents of the victim’s purse. Because the defendant and his compatriot were not the only customers to visit the store and to have access to the victim’s purse, the court held that the circumstantial evidence was insufficient to support the conviction.

In the case before us, the appellant and her husband alone had access to the bedroom where the jewelry was. Although appellant and her husband each denied taking the diamond, no one else was present in the house on New Year’s Day other than the appellant and her husband, the owners of the house, and the victim and her husband. Mrs. Neyland last saw her jewelry about 3:00 p.m. and noticed the diamond missing within minutes of the departure of appellant and her husband. No one other than appellant and her husband entered the bedroom between the time the diamond was last seen and when it was discovered missing. Appellant’s behavior changed after her last trip to the bathroom.

Looking at the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found appellant guilty beyond a reasonable doubt under the law of parties. Appellant’s first point of error is overruled.

Appellant and her husband were indicted for theft of “a one (1) carat diamond.” As her next point, appellant contends that the State failed in its burden to prove this descriptive averment in the indictment. We agree.

The general rules governing the proof of descriptive averments are set out in Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975):

It is well settled that “[ajllegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment are treated as mere surplusage, and may be entirely disregarded.” 1 Branch’s Ann.P.C., 2d ed., Sec. 517, p. 497 (1956). Stated another way, it may be said that if not descriptive of that which is legally essential to the validity of the indictment, information or complaint, unnecessary words or allegations may be rejected as surplusage. [See Collins v. State, 500 S.W.2d 168 (Tex.Cr.App.1973) ]
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McMillan v. State
754 S.W.2d 422 (Court of Appeals of Texas, 1988)

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Bluebook (online)
754 S.W.2d 422, 1988 Tex. App. LEXIS 3457, 1988 WL 71223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmillan-v-state-texapp-1988.