Oliver v. State

613 S.W.2d 270, 1981 Tex. Crim. App. LEXIS 940

• Court: Court of Criminal Appeals of Texas
• Decided: March 25, 1981
• Docket: 58401
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

Appellant was convicted of theft over $200 and less than $10,000. The court assessed punishment, enhanced under V.T. C.A., Penal Code, Section 12.42(d), at life.

The indictment alleged:

“... that Charles Douglas Oliver on or about the 27th day of September A.D., 1975 and anterior to the presentment of this indictment, in the County of Wichita and State of Texas, did then and there unlawfully appropriate property, to-wit: a pistol of the value of $149.95 from Coyle Defoor without the effective consent of the owner, Coyle Defoor, and with intent to deprive the said owner of said property and did appropriate property, to-wit: a pistol of the value of $65.00 from Charles Halovek without the effective consent of the owner, Charles Halo-vek, and with intent to deprive the said owner of said property and both of said pistols were obtained, as alleged, in one scheme and continuing course of conduct, and the aggregate value of the pistols stolen was more than $200 and less than $10,000.”

Charles Halovek, the owner of the sixty-five dollar pistol, testified that appellant came in his store and requested to see one of the pistols. Halovek gave Oliver a .38 caliber pistol. Oliver then suddenly bolted out the door and ran down a neighboring alley. Halovek identified Oliver as the thief.

Coyle Defoor testified that, on the same day, a pistol was taken from him under similar circumstances. When asked about the identity of the robber, Defoor testified:

“Q. The person that came in that day, had he been in your place of business before?

“A. Yes, sir.

“Q. Approximately how many times?

“A. That’s hard to — I couldn’t say, but I had known him off and on for about a year.

“Q. And how had you come to know him?

“A. Oh, he had made a loan, I’m sure, in the store, and just looking around, too, and just knowing him as an individual.

“Q. Is that person present in the courtroom today?

“A. I couldn’t say.

“Q. Do you remember the description of the individual?

“A. Not really. I wouldn’t want to swear on it, and if I may, I’d like to say something.”

He then testified, over appellant’s objection:

“Q. (Mr. Towery) Okay. Had you, prior to today, made an identification of the individual who took the pistol from your store?

“A. Yes, sir, I did.

“Q. And do you remember the approximate date that that identification was made?

“A. It was right around — right after it or the next day, I’m pretty sure, because I’d say it was either that day or the next day.

“Q. And did you — to whom did you make the identification?

“A. To the investigating officer that was investigating the incident.

“Q. Do you remember his name?

“A. No, sir, I sure don’t.

“Q. The identification that you made, did you name an individual?

“A. Yes, sir.

“Q. And did you tell the officer the individual’s name who took the pistol from your store?

“A. Yes, sir.

“Q. And what was that name?

“A. Charles Oliver.

“Q. And did you, at a later date, have occasion to identify this person known as — that you knew as Charles Oliver?

“A. Yes, sir.

“Q. And did you, when you identified him at this later date — was he present in the same room in which you were in?

“A. Yes, sir.

“Q. And was it a face-to-face identification?

“A. Yes, sir.

“Q. And at that time were you positive as to the identification being one and the same person as the person who took the pistol from your store?

“A. Yes, sir.

“Q. And do you remember approximately when that was?

“A. No, sir.”

On cross-examination, Defoor testified:

“Q. And I believe you also said that you couldn’t say for sure that the defendant, who is in this room, was in your store on that day?

“A. That’s correct.

“Q. And I believe you’ve also said that you could not name the person at this time who was in the store on that day?

“A. Do what again?

“Q. I’m sorry, that question wasn’t very clear. That you couldn’t say that the defendant was in your store and you could not identify the person here, the defendant here, as being the person who was in your store on that day, I believe you said that, didn’t you?

“A. I sure did.”

In Barrett v. State, 547 S.W.2d 604 (Tex.Cr.App.1977), we reversed the defendant’s conviction, based on his guilty plea, because of the lack of an affirmative identification of the defendant as the attacker and the lack of evidence connecting the defendant with the crime. In Ledet v. State, 533 S.W.2d 817 (Tex.Cr.App.1976), the defendant was charged with oral sodomy. The complaining witness, an eight-year-old boy, was unable to identify the defendant as the sodomist. In spite of testimony from the victim’s mother that the boy was found in the defendant’s apartment right after the offense and that the boy told her about the commission of the offense, this Court held the evidence on identification to be insufficient.

The evidence in the case at bar is even less compelling than in Ledet. Even though Defoor testified that he identified a Charles Oliver as the robber, he was unable to identify the appellant as the same Charles Oliver. There was no evidence admitted that would connect Oliver with the crime. There was no testimony by an arresting officer that Oliver was found with the stolen guns in his possession, nor was there any evidence by the officer conducting the lineup that Defoor had identified appellant as the robber.

Because it was necessary for the State to consolidate both offenses into a single count in order to prosecute a felony, the evidence is insufficient to support the indictment.

The conviction is reversed and reformed to reflect a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Before the court en banc.