Van Sickle v. State

Court of Criminal Appeals of Texas

Van Sickle v. State

604 S.W.2d 93, 1980 Tex. Crim. App. LEXIS 1324

CourtCourt of Criminal Appeals of Texas

DecidedSeptember 10, 1980

Docket57009

StatusPublished

Cited by16 cases

This text of 604 S.W.2d 93 (Van Sickle v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Van Sickle v. State, 604 S.W.2d 93, 1980 Tex. Crim. App. LEXIS 1324 (Tex. 1980).

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OPINION

ROBERTS, Judge.

A jury found the appellant guilty of theft of property and it assessed his punishment at two years’ confinement and a fine of $2,000. The State’s case consisted of circumstantial evidence, the chief circumstance being the presence in the appellant’s apartment of 16 pieces of stolen furniture. The appellant’s explanation of this circumstance was that, with the cooperation of his roommate, he bought the furniture from a third person. According to the appellant, his roommate acted as intermediary by taking the appellant’s payment to the third person and bringing back a receipt. When [95]*95the appellant’s counsel tried to elicit from the appellant the details of the arrangement, the State objected to “obtaining testimony from a receipt that has not been admitted in evidence.” The appellant then offered the receipt as evidence. The State objected on the ground that the roommate was “available to verify the authenticity of that very exhibit.” (In fact, the roommate was a co-indictee who had agreed to testify for the State in return for a dismissal of the charge against him. He denied knowledge of the receipt.) The trial court sustained the objection; this was error.

The appellant’s “intent to deprive the owner of property” was an essential element of the offense. V.T.C.A., Penal Code, Section 31.03(a). By this indictment, the State also was required to prove that the appellant “knowingly and unlawfully appropriate[d] property . . . without the effective consent of . the owner. . . ” If the roommate gave the appellant the receipt, whether “authentic” or not, it would be relevant to the issues of the appellant’s mental states. Long v. State, 1 Tex.Ct.App. 466 (1876); see Goens v. State, 35 Tex.Cr.R. 73, 31 S.W. 656 (1895). That the roommate might (and later did) deny giving the appellant the receipt would create only a factual question of the weight to be given the evidence; it would not render the evidence inadmissible. Because the evidence of guilt was not overwhelming, we cannot say that the error in excluding this evidence was harmless.

The judgment is reversed and the cause is remanded.

Before the court en banc.

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OPINION

ROBERTS, Judge.

A jury found the appellant guilty of theft of property and it assessed his punishment at two years’ confinement and a fine of $2,000. The State’s case consisted of circumstantial evidence, the chief circumstance being the presence in the appellant’s apartment of 16 pieces of stolen furniture. The appellant’s explanation of this circumstance was that, with the cooperation of his roommate, he bought the furniture from a third person. According to the appellant, his roommate acted as intermediary by taking the appellant’s payment to the third person and bringing back a receipt. When [95]*95the appellant’s counsel tried to elicit from the appellant the details of the arrangement, the State objected to “obtaining testimony from a receipt that has not been admitted in evidence.” The appellant then offered the receipt as evidence. The State objected on the ground that the roommate was “available to verify the authenticity of that very exhibit.” (In fact, the roommate was a co-indictee who had agreed to testify for the State in return for a dismissal of the charge against him. He denied knowledge of the receipt.) The trial court sustained the objection; this was error.

The appellant’s “intent to deprive the owner of property” was an essential element of the offense. V.T.C.A., Penal Code, Section 31.03(a). By this indictment, the State also was required to prove that the appellant “knowingly and unlawfully appropriate[d] property . . . without the effective consent of . the owner. . . ” If the roommate gave the appellant the receipt, whether “authentic” or not, it would be relevant to the issues of the appellant’s mental states. Long v. State, 1 Tex.Ct.App. 466 (1876); see Goens v. State, 35 Tex.Cr.R. 73, 31 S.W. 656 (1895). That the roommate might (and later did) deny giving the appellant the receipt would create only a factual question of the weight to be given the evidence; it would not render the evidence inadmissible. Because the evidence of guilt was not overwhelming, we cannot say that the error in excluding this evidence was harmless.

The judgment is reversed and the cause is remanded.

Before the court en banc.

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604 S.W.2d 93, 1980 Tex. Crim. App. LEXIS 1324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-sickle-v-state-texcrimapp-1980.

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