Polk v. State

749 S.W.2d 813, 1988 Tex. Crim. App. LEXIS 32, 1988 WL 18669

• Court: Court of Criminal Appeals of Texas
• Decided: February 24, 1988
• Docket: 1043-85
• Status: Published

Opinions

OPINION ON STATE’S MOTION FOR REHEARING AFTER PETITION FOR DISCRETIONARY REVIEW REFUSED

DUNCAN, Judge.

Appellant was convicted by a jury of theft of property of a value of $750.00 or more but less than $20,000.00. Tex.Penal Code Ann., § 31.03(b)(2) (Vernon Supp. 1988). Punishment was assessed by the trial judge at seven years confinement in the Texas Department of Corrections. On appeal, the Dallas Court of Appeals reversed the appellant’s conviction. Polk v. State, 695 S.W.2d 720 (Tex.App. — Dallas 1985, pet. granted).¹ We granted the State’s Motion for Rehearing after initially refusing its Petition for Discretionary Review to determine whether the court of appeals properly reviewed the sufficiency of the evidence. More specifically, and in the first instance, the State claims that the court of appeals failed to review the sufficiency of the evidence in light of the jury charge relative to whether the grand jury exercised due diligence to determine the identity of an “unknown” individual.

An automobile owned by a Beth Cowart was reported stolen on February 26, 1984. On March 8, 1984, the appellant asked a Dallas pawnbroker if he was interested in purchasing some stolen automobile parts. These parts were allegedly within a Jartran rental van in which the appellant and another man had arrived. Later, the pawnbroker informed the police of what the appellant had said. On the same day, an Officer Gargani answered a theft of service call regarding the Jartran truck. Having knowledge of both the theft of service call and what had transpired between the pawnbroker and appellant, Officer Gargani set out to locate the Jartran truck. While on patrol, Officer Gargani spotted the truck and arrested the appellant. Automobile parts from the Cowart automobile were thereafter found inside the Jartran truck.

At trial, among the other witnesses, the State called Larry Kortage, the assistant foreman of the grand jury which indicted the appellant. The former grand juror confirmed that the appellant was indicted based upon the evidence presented to the grand jury. He also testified that the grand jury had heard no evidence as to who originally stole the automobile and that this individual was therefore unknown to the grand jurors. On cross-examination, the former grand juror could not say for sure that he actually remembered this particular case or, consistently, whether or not the grand jury had exercised due diligence to ascertain the identity of the original thief. On redirect, Kortage testified that he had reviewed the transcript of the grand jury proceedings in this case prior to the trial. He also acknowledged that the appellant’s case was one of over 400 cases heard by this particular grand jury over a three month period. Finally, he reiterated that to the best of his recollection the grand jury had heard no evidence as to the identity of the thief.

The appellant was tried under a two paragraph indictment.²

According to the court of appeals, “[t]he issue [became] whether the grand jury used due diligence to learn the name of the unknown person.” Polk v. State, supra, at 722. After concluding that the evidence failed to establish that the grand jury exercised due diligence in making such a determination, the court of appeals reversed the appellant’s conviction and ordered a judgment of acquittal.

In one ground for review the State contends that the court of appeals failed to measure the sufficiency of the evidence with regard to grand jury due diligence in light of the jury charge that was given. Admittedly, the charge at issue does not require a finding of due diligence on the part of the grand jury.

[If you believe the defendant] ... did then and there unlawfully, knowingly or intentionally appropriate property, namely exercise control over property, other than real property, to-wit: a car door, or a partial front end sheet metal assembly, or two (2) car seats, or a rear air foil, or wheels, or tires, or radio speakers, of the value of at least $750.00 but less than $20,000.00, with the intent to deprive the owner, Beth Cowart, of the property, and the said property was stolen and the defendant did appropriate the said property knowing that the property was stolen by another, whose name and identity is unknown to the Grand Jurors, then you will find the defendant guilty of theft, as charged in the indictment. [Emphasis added.]

In Boozer v. State, 717 S.W.2d 608 (Tex.Cr.App.1984) we held that questions regarding the sufficiency of the evidence must be resolved in light of the charge which is given. See also Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1983); Marras v. State, 741 S.W.2d 395 (Tex.Cr.App.1987). In Boozer the jury charge unnecessarily increased the State’s burden of providing independent evidence necessary to corroborate accomplice testimony. Likewise in Benson, the charge which was submitted constituted an unnecessary limitation on the legal theories available to secure a conviction for retaliation. In Marras, a capital murder case, the punishment charge erroneously instructed the jury that the defendant’s prior conviction could only be used to show his intent. As a practical, evidentiary matter the instruction rendered evidence of the defendant’s prior criminal record a nullity. In all three cases, the jury charge improperly increased the burden of proof required to secure a conviction. Or, in the last case, the death penalty.

In response to the State’s contention, the appellant argues that the Benson-Boozer holdings are inapplicable because a conviction cannot stand on a jury charge which authorizes a conviction on less evidence than the law mandates. In other words, the appellant argues that although the jury charge in this instance failed to require a finding of due diligence on the part of the grand jury to ascertain the identity of the “unknown” individual, the appellant’s conviction must nonetheless be reversed because the law requires a finding of due diligence in such an instance.

The appellant is undoubtedly correct when he asserts that Benson and Boozer, and more recently, Marras, cannot stand for the proposition that a jury charge may authorize a conviction on less evidence than the law requires. A review of the sufficiency of the evidence measured by the charge which is given presupposes a charge which is correct for the theory of the case presented. Benson v. State, supra, at 715 (Opinion on State’s second motion for rehearing). As Judge Clinton later observed, “[i]t would be anomalous to measure the sufficiency of evidence against an authorization that reduces the State’s burden of proof from that which is minimally required under the law....” Fain v. State, 725 S.W.2d 200, 204 (Tex.Cr.App.1986) (Clinton, J., concurring and dissenting). Consequently, the issue in this case ultimately becomes whether a proper jury charge requires a finding of due diligence on the part of the grand jury to determine the identity of an unknown individual.

The elements of the offense with which the appellant was convicted are: (1) a person, (2) with the intent to deprive the owner of property, (3) appropriates property, (4) which is stolen property, (5) knowing it was stolen, (6) by another. Franklin v. State, 659 S.W.2d 831 (Tex.Cr.App.1983); Dennis v. State, 647 S.W.2d 275 (Tex.Cr.App.1983).

In addition, the indictment also contained an allegation that the initial thief’s “name and identity is unknown to the Grand Jury.” The latter allegation, however, is no longer necessary to properly plead the offense of theft under § 31.03(b)(2). In McClain v. State, 687 S.W.2d 350 (Tex.Cr.App.1985) we stated that “it has now been acknowledged that the ‘manner of acquisition’ is inconsequential to the evil of a theft: the gravaman of theft is in depriving the true owner of the use, benefit, enjoyment or value of his property, without his consent.” (Emphasis in original.) Id., at 353.³ Consequently, the State must plead and prove only that the property was stolen by another.

It is true that unnecessary words or allegations may be rejected as surplus-age if they are not descriptive of that which is legally essential to the validity of an indictment. Franklin v. State, supra, at 833. But where the unnecessary matter is descriptive of that which is legally essential to charge a crime, it must be proven as alleged even though needlessly stated. Id; Weaver v. State, 551 S.W.2d 419 (Tex.Cr.App.1977). Before reaching the primary issue, we must determine whether the additional, seemingly unnecessary allegation in the indictment is descriptive of that which is legally essential or merely surplusage.

As previously stated, the State must plead and prove that the property was stolen by another. The allegation that this individual was unknown to the grand jurors is descriptive of the “another” participant in the theft, or the original thief. This allegation is appropriate to an indictment for theft under § 31.03(b)(2), V.A. P.C., because it elaborates on and describes the essential elements of the offense that must be pled. Franklin v. State, supra, at 834. Accordingly, such an allegation is not surplusage and the State was bound to prove the allegations in the indictment. That is, the State must prove that the name and identity of the person who stole the property was unknown to the grand jury.

Both the appellant and court of appeals cite Payne v. State, 487 S.W.2d 71 (Tex.Cr.App.1972) for the proposition that when an indictment alleges that the name of such a person is unknown, the State has the burden of proving the grand jury exercised reasonable diligence to ascertain the name. In Payne the defendant was convicted of receiving and concealing stolen property “from a person to the Grand Jurors unknown.” Yet, during the course of the trial it became apparent that the identity of the initial thief was known to the police officer investigating the case at the time he testified before the grand jury. This Court found that in such a case the grand jury must at least ask the name of a person before stating in the indictment that the person was unknown. Id., at 74. The Court then stated the applicable rule:

The law is settled that an allegation that the name of a person connected with the offense was unknown to the grand jury must be supported by sufficient proof. And where this allegation becomes an issue on the trial, the proof must show that the grand jury used due diligence to ascertain the unknown name. Id.

The Court concluded that the record revealed that the grand jury failed to exercise reasonable diligence to determine the name of the person from whom the stolen property was received.

It is important to note that Payne requires proof of grand jury due diligence only when the allegation that the person from whom the property was received was unknown becomes an issue. The court of appeals concluded, without any analysis whatsoever, that the identity of the person unknown to the grand jury became an issue. Likewise, in his reply brief, the appellant contends the “allegation of the unknown individual was clearly raised and was at issue in this case.” Both of these contentions are erroneous.

The issue that Payne refers to is not whether the grand jury exercised due diligence. Instead, the preliminary issue that must be raised by the evidence is whether or not the allegation that the person from whom the property was received was actually unknown. In other words, the issue is whether or not the identity of the allegedly unknown person was known or with the exercise of reasonable diligence capable of being known. Consequently, grand jury due diligence must be proven by the State only after the evidence reveals that the original thief’s identity was known or capable of being discovered. If the identity of the original thief was unknown or incapable of being discovered then evidence of a grand jury’s diligence in trying to discover that which remains unknown would be a time consumming exercise of self-serving futility.

Such a rule is in keeping with the aversion of appellate courts to review the function of the grand jury. This Court will not review the sufficiency of the evidence presented to the grand jury to determine whether an indictment is justified. Brooks v. State, 642 S.W.2d 791, 795 (Tex.Cr.App.1982). In addition, we will not go behind an indictment which appears to be legally valid. Carr v. State, 600 S.W.2d 816, 817 (Tex.Cr.App.1980). There is no question that the indictment charging the appellant with the offense of theft was legally valid.

The real question then is whether the identity of the person from whom the property was received that was unknown later became known. Only then does the State assume the additional burden of proving grand jury due diligence in making such a determination.

The rule was aptly stated in Cunningham v. State, 484 S.W.2d 906 (Tex.Cr.App.1972):

... where nothing is developed in a trial to suggest that investigation by the grand jury could have ascertained from whom a defendant received the stolen properly, there is a prima facie showing that the name of the party from whom the defendant received the property was unknown to the grand jury, thereby supporting such averment in the indictment.[⁴] The question of variance is not presented. This is especially true where the whole case shows that if the grand jury had been in possession of all the evidence developed on the trial it still could not have determined from whom the defendant received the stolen property. Id., at 911.

See also, Scott v. State, 732 S.W.2d 354, 359 (Tex.Cr.App.1987).

A thorough review of the record indicates that if the grand jury had been in possession of all of the evidence presented at the appellant’s trial they still could not have ascertained from whom the stolen property was received.

The owner of the stolen automobile testified that she last saw the car in the parking lot of her apartment complex at approximately 10:30 p.m. on February 25, 1984. Upon waking early the next morning, the car was discovered missing. The owner had not heard or seen anyone take the automobile. The pawnbroker, whom the appellant had solicited regarding the stolen auto parts, did not say that the appellant had implicated either himself or his companion in the initial theft of the automobile. On cross-examination, the investigating police officer testified that he did not see who had actually stolen the car. The only other witnesses testified as to the chain of custody of the stolen parts following the appellant’s arrest and the fair market value of both the stolen automobile and the individual parts.

The record does not give any indication as to the identity of the original thief of the automobile. In this case the allegation that the identity of the initial thief was unknown to the grand jury was simply never put in issue because the original thief’s identity remains unknown.

As previously noted, the indictment which charged the appellant with theft alleged that the stolen property was received from a person “unknown to the Grand Jurors.” The assistant grand jury foreman testified that this was indeed the case. His inability to recall exactly which questions were asked and the procedures employed in the appellant’s particular case are merely factors for the jury to consider in weighing the value of the evidence.

In this case the degree of diligence the grand jury exercised in trying to identify the original thief was not an aspect of the offense with which the appellant was charged, McLeroy v. State, 113 Tex.Crim. 118, 97 S.W.2d 184 (1936), because it did not become an issue at trial. Thus, no variance exists between the allegations contained in the indictment and the proof at trial.

The judgment of the court of appeals is reversed and the judgment of the trial court affirmed.

ONION, P.J., and McCORMICK, J., concur.

1 . That portion of the court of appeals’ opinion dealing with the revocation of probation has already been reviewed and disposed of by this Court in Polk v. State, 729 S.W.2d 749 (Tex.Cr.App.1987).

2 . The first paragraph alleged that the appellant unlawfully appropriated the Cowart automobile. The second paragraph alleged that the appellant unlawfully appropriated the disassembled parts of the Cowart automobile ‘knowing that the property was stolen by another, whose name and identity is unknown to the Grand Jurors." The appellant was found guilty by the jury under the second paragraph of the indictment.

3 . In McClain v. State, 687 S.W.2d 350 (Tex.Cr.App.1985) we stated:

Thus, the varying misleading emphasis 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.

Consequently, the longstanding requirement of State v. Perkins, 45 Tex. 10 (1876) that an indictment alleging receipt of stolen property from another requires the name of the person from whom the stolen property was received, is not applicable.

4 . In fact, the oath of the grand jurors requires each to swear to "diligently inquire into ... all such matters and things as shall be given you in charge." Article 19.34, V.A.C.C.P.