Pichon v. State

756 S.W.2d 16, 1988 Tex. App. LEXIS 1588, 1988 WL 68817
CourtCourt of Appeals of Texas
DecidedJuly 7, 1988
DocketNo. B14-87-00275-CR
StatusPublished
Cited by2 cases

This text of 756 S.W.2d 16 (Pichon 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
Pichon v. State, 756 S.W.2d 16, 1988 Tex. App. LEXIS 1588, 1988 WL 68817 (Tex. Ct. App. 1988).

Opinion

OPINION

ELLIS, Justice.

Appellant, Christopher A. Pichón, appeals from a judgment of conviction for the felony offense of theft by receiving. Tex. Penal Code Ann. § 31.03(b)(2) & (e)(4)(A) (Vernon Supp.1988).1 A jury rejected his not guilty plea and found him guilty of appropriating a set of “bucket” type seats worth over $750 but less than $20,000, which an unknown person had stolen from [18]*18the complaining witness’s 1985 Chevrolet Suburban. The court assessed punishment at five years, probated for five years. We affirm the judgment as modified.

Appellant presents six points of error. The first three challenge the sufficiency of the evidence. In his fourth, fifth and sixth points of error, appellant maintains the trial court erred by: failing to instruct the jury on a lesser included misdemeanor offense; allowing a polygraph operator to attest to appellant’s admissions; and failing to indicate in its judgment the reimbursement due appellant’s court-appointed attorney. We affirm the judgment as modified.

Viewed in the light most favorable to the verdict, the facts show that Houston Police Officers Nickell and Klawitter went to the One Stop Custom Auto Accessory shop on November 15, 1985. They regularly stopped by the shop as part of their jobs with the “Seat Detail,” a special police department investigating theft of car accessories. Their duties included determining whether any of the items for sale that day were stolen. They did this by comparing parts of “stripped” vehicles recovered by the police with items in the store’s stock, to see if any matched.

Appellant and two other young men were standing just outside the open front door of the shop when the officers arrived. Two front “bucket” type car seats were on the ground immediately in front of the door. Nickell asked the group who was selling the seats. When no one answered, a shop employee pointed to the appellant. Appellant answered “yes” when Nickell asked him if the seats were his. When Nickell informed the appellant that charges would be filed if the seats were stolen, he denied they were stolen. Officer Nickell later watched as appellant presented identification and signed the shop’s police department log sheet.2 Appellant admitted he received $300 for the seats. The officers removed parts of the plastic seat rails from the seats while at the shop.

After they finished checking other items in the shop’s inventory, the officers returned to their office to check their computer files. There they located a 1985 Chevrolet Suburban the police found abandoned the previous day, minus its seats, radio, spare tire and jack. Officer Klawit-ter took the plastic parts he had removed from the Suburban and turned them over to the crime lab staff, together with parts of the plastic seat rails he and Nickell had taken from the seats at the shop. When the Crime Lab confirmed the parts matched, the officers arrested Pichón at his home after giving him a Miranda warning. While driving to the police station, Nickell asked appellant if he had any idea the seats were stolen. Appellant admitted he thought they might be.

At trial, Nickell set the value of the car seats at approximately $4,000. Both he and Klawitter testified the person from whom the defendant had received the stolen property was still unknown to them at trial. The complainant established he owned a 1985 Chevrolet Suburban which had been stolen on November 14, 1985 and that it cost him $3,720 to replace the seats. Jay Watt Hinson, a polygraph operator, testified that after appellant received his Miranda warning he admitted he knew the seats were stolen but had not so informed his attorney.

Appellants’ first three points of error challenge the sufficiency of the evidence to sustain his conviction. This court must evaluate these points of error by reviewing the evidence in light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jackson v. State, 672 S.W.2d 801 (Tex.Crim.App.1984) (en banc).

The first point of error concerns the sufficiency of the evidence to support the allegations of the indictment. As the court of criminal appeals has recently indicated, the [19]*19Jackson v. Virginia standard must be applied when an appellant raises such a challenge to the sufficiency of the evidence. See Horne v. State, 749 S.W.2d 74 (Tex.Crim.App.1988) (en banc). The indictment alleged appellant appropriated the complainant’s car seats “knowing the property was stolen by another person whose name is unknown.” The court’s charge repeated the allegation. Appellant maintains his conviction must necessarily be reversed and an order of acquittal entered, because the record lacks sufficient proof of that allegation. We disagree.

A fatal variance can result when the indictment alleges the person from whom the defendant received the stolen property is unknown, but the proof developed at trial shows that the indicting grand jury did in fact know the person’s name, or could have ascertained it by reasonable diligence. See Cunningham v. State, 484 S.W.2d 906 (Tex.Crim.App.1972); Payne v. State, 487 S.W.2d 71 (Tex.Crim.App.1972). However, a threshold issue is whether the evidence developed at trial demonstrates that the “unknown” person was actually known or could have been known through reasonable diligence. Polk v. State, 749 S.W.2d 813, 817 (Tex.Crim.App.1988). Thus, the State must prove the grand jury exercised due diligence to try to discover the identity of the person from whom the accused received the property only when the evidence at trial shows that the person’s identity later became known. Id. This is not such a case.

As Officers Nickell and Klawitter both testified, at the time of the trial they still did not know the identity of the person from whom the defendant received the stolen seats. Nickell stated appellant gave him and Klawitter only the first names of the two men from whom he allegedly received the seats. Although appellant stated “Kevin” gave a detective the last name “Jones,” Nickell stated appellant denied knowing either of the other two young men’s last names or their addresses shortly after he was arrested. The record contains no evidence to suggest that the identity of the person who transferred the stolen seats to appellant later became known. Because the record also fails to disclose sufficient evidence on which to base a contention that the grand jury could have ascertained that person’s identity if it had exercised reasonable diligence, there is no basis for appellant’s insistence that the State present evidence of the grand jury’s efforts to discover the person’s identity.

In suggesting the grand jury could have ascertained the identity of the actual thief, appellant focuses on the testimony of the polygraph operator Hinson.

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Bluebook (online)
756 S.W.2d 16, 1988 Tex. App. LEXIS 1588, 1988 WL 68817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pichon-v-state-texapp-1988.