Minx v. State

615 S.W.2d 748, 1981 Tex. Crim. App. LEXIS 1019

• Court: Court of Criminal Appeals of Texas
• Decided: May 20, 1981
• Docket: 59837
• Status: Published

Opinions

OPINION

McCORMICK, Judge.

This is an appeal from a conviction of theft of property over $200 or more but less than $10,000. After the jury found appellant guilty, the court assessed punishment at eight years. On appeal, appellant contends the evidence is insufficient to support the conviction and that the trial court erred in refusing to grant a continuance.

On the evening of July 29, 1976, James Day observed three men across the street from his home where a house was under construction. Two of the men were loading wooden roof shingles into a van. Day identified appellant as one of these two men. Because of their quick movements, Day became suspicious and called the police.

Rockwall officers G. R. Sumrow and Marcus Chamberlain responded to the call. As the officers approached the address reported by Day, the appellant and one of the other men attempted to flee. Sumrow pursued appellant and found him lying between a house and some shrubbery some distance up the street from the scene of the offense. Appellant was arrested. Appellant informed the officers that he had been hired by a man at the Dallas bar to move the shingles.

At trial, appellant’s wife corroborated appellant’s story. Additionally, several witnesses testified that they saw appellant talking with a man at the bar about picking something up. However, the record reflects that neither appellant nor anyone else knew the man’s name or where or how he could be located.

Charles P. Hoffman, a building contractor, testified that he had purchased the shingles and had them delivered to the construction site. Hoffman stated that he had not given anyone consent to pick up or move the shingles.

Appellant contends the witnesses corroborated his version of the facts and, therefore, evidence is insufficient to prove lack of intent to deprive the owner of property. However, the jury, or trial judge in a trial before the court, is the sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony given by State or defensive witnesses. Johnson v. State, 571 S.W.2d 170 (Tex.Cr.App.1978); Tatom v. State, 555 S.W.2d 459 (Tex.Cr.App.1977).

The jury was free to disbelieve the exculpatory statements made by appellant and the witnesses. Further, the jury could infer appellant’s intent from his immediate flight during the commission of the offense and the inability to identify or locate his alleged employer. In viewing the evidence in the light most favorable to the verdict, we find the evidence sufficient to warrant the conviction.

In appellant’s second ground of error, he complains that the trial court erred in failing to grant his oral motion for continuance which was made during the trial and was based on the unavailability of a witness.

Article 29.03, V.A.C.C.P., reads:

“A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion. A continuance may be only for as long as is necessary.” (Emphasis added).

Article 29.08, V.A.C.C.P., reads:

“All motions for continuance on the part of the defendant must be sworn to by himself.”

Appellant’s motion for continuance was neither in writing nor was it sworn to by appellant. Norton v. State, 564 S.W.2d 714 (Tex.Cr.App.1978); Allen v. State, 505 S.W.2d 923 (Tex.Cr.App.1974). Accordingly, nothing is presented for review. Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976).

Moreover, appellant did not perfect the record by filing a timely motion for new trial with an affidavit of the missing witness or by showing under oath what the testimony would have been. Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977).

We now turn to the issue raised by the dissent — whether the indictment is “fundamentally defective.” The indictment states that appellant

“... did then and there unlawfully obtain property, to wit, 59 bundles of wooden shingles of the value of in excess of TWO HUNDRED AND NO/100 DOLLARS ($200.00) and less than TEN THOUSAND AND NO/100 DOLLARS ($10,000.00) from Charles Hoffman without the effective consent of the owner, Charles Hoffman, and with intent to deprive the said owner of said property.”

Contrary to the position taken by the minority, we find the indictment sufficient. In Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976) (State’s motion for rehearing), this Court set out the requisites for a theft indictment under V.T.C.A. Penal Code, Section 31.03 (1974). Under subsections (a)(1) and (b)(1), the elements required to be alleged in the indictment are:

(1) a person

(2) with intent to deprive the owner of property

(3) obtains the property

(4) without the owner’s effective consent. Accord: Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977) (State’s motion for rehearing).

In applying the criteria established in Cannon, and reaffirmed in Reynolds, we find that the indictment sufficiently set forth all the necessary elements of theft. The “with the intent to deprive the owner” element was placed at the end of the allegations. However, we fail to find that such drafting was “fundamental error.”

The judgment is affirmed.