Wells v. State

Court of Criminal Appeals of Texas

Wells v. State

608 S.W.2d 200, 1980 Tex. Crim. App. LEXIS 1513

CourtCourt of Criminal Appeals of Texas

DecidedDecember 23, 1980

Docket57566

StatusPublished

Cited by16 cases

This text of 608 S.W.2d 200 (Wells 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.

Bluebook

Wells v. State, 608 S.W.2d 200, 1980 Tex. Crim. App. LEXIS 1513 (Tex. 1980).

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OPINION

ROBERTS, Judge.

Hans Wells was convicted of three counts of theft, each a felony of the third degree. The court assessed punishment at 5 years’ confinement (probated) and a fine of $500.

Each count of the indictment alleged that on a day in 1974 the appellant obtained and exercised control over money “from 3-W Appliance Sales & Service, Inc., without the effective consent of the owner, 3-W Appliance Sales & Service, Inc., and with intent to deprive the said owner of said property.” The appellant argues that there was no proof of the lack of consent of 3-W Appliance Sales & Service, Inc. We must agree. The only proof of lack of consent was the testimony of Ned Westmoland that he did not consent to the appellant’s taking of the corporation’s money.

In Easley v. State, 167 Tex.Crim. 156, 319 S.W.2d 325 (1959), proof of ownership was in question. The indictment alleged that H. E. Butt was the owner of stolen property. Butt himself testified that the owner was H. E. Butt Grocery Company, a corporation. Although Butt owned all the stock in the corporation he was not the owner of the property, as alleged. The proof failed.

In the instant case Westmoland, the appellant, and the appellant’s brother were the incorporators of 3-W Appliance Sales & Service, Inc. It appears that Westmoland provided the capital and the Wells brothers ran the business. The appellant used corporate funds to buy some things for himself. A certificate of incorporation was issued by the Secretary of State, which brought the corporation into existence. Texas Business Corporation Act, Article 3.04. Although Westmoland may have financed the corporation, he was not the corporation. Proof that he did not consent was not proof that the corporation did not consent.

This Court frequently remarks that it is proper and better practice to allege in the indictment that corporate property was taken from the control of a natural person who acted for the corporation. E. g., Castillo v. State, 469 S.W.2d 572 (Tex.Cr.App.1971). Here the State chose not to do so. “It was the province of the state to ... allege ownership, but in doing so it assumed the burden of establishing and proving ownership as alleged. The state has failed to perform that duty, and such failure requires a reversal of the case.” Easley v. State, 167 Tex.Crim. 156, 319 S.W.2d 325, 325 (1959). The same is true of the duty to prove lack of consent as alleged. The trial court erred in denying the appellant’s motion for a directed verdict.

The only just remedy is the direction of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1, 14 (1978). See also Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

The judgment is reversed and the cause is remanded with directions to enter a judgment of acquittal.

Before the court en banc.

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OPINION

ROBERTS, Judge.

Hans Wells was convicted of three counts of theft, each a felony of the third degree. The court assessed punishment at 5 years’ confinement (probated) and a fine of $500.

Each count of the indictment alleged that on a day in 1974 the appellant obtained and exercised control over money “from 3-W Appliance Sales & Service, Inc., without the effective consent of the owner, 3-W Appliance Sales & Service, Inc., and with intent to deprive the said owner of said property.” The appellant argues that there was no proof of the lack of consent of 3-W Appliance Sales & Service, Inc. We must agree. The only proof of lack of consent was the testimony of Ned Westmoland that he did not consent to the appellant’s taking of the corporation’s money.

In Easley v. State, 167 Tex.Crim. 156, 319 S.W.2d 325 (1959), proof of ownership was in question. The indictment alleged that H. E. Butt was the owner of stolen property. Butt himself testified that the owner was H. E. Butt Grocery Company, a corporation. Although Butt owned all the stock in the corporation he was not the owner of the property, as alleged. The proof failed.

In the instant case Westmoland, the appellant, and the appellant’s brother were the incorporators of 3-W Appliance Sales & Service, Inc. It appears that Westmoland provided the capital and the Wells brothers ran the business. The appellant used corporate funds to buy some things for himself. A certificate of incorporation was issued by the Secretary of State, which brought the corporation into existence. Texas Business Corporation Act, Article 3.04. Although Westmoland may have financed the corporation, he was not the corporation. Proof that he did not consent was not proof that the corporation did not consent.

This Court frequently remarks that it is proper and better practice to allege in the indictment that corporate property was taken from the control of a natural person who acted for the corporation. E. g., Castillo v. State, 469 S.W.2d 572 (Tex.Cr.App.1971). Here the State chose not to do so. “It was the province of the state to ... allege ownership, but in doing so it assumed the burden of establishing and proving ownership as alleged. The state has failed to perform that duty, and such failure requires a reversal of the case.” Easley v. State, 167 Tex.Crim. 156, 319 S.W.2d 325, 325 (1959). The same is true of the duty to prove lack of consent as alleged. The trial court erred in denying the appellant’s motion for a directed verdict.

The only just remedy is the direction of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1, 14 (1978). See also Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

The judgment is reversed and the cause is remanded with directions to enter a judgment of acquittal.

Before the court en banc.

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608 S.W.2d 200, 1980 Tex. Crim. App. LEXIS 1513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-state-texcrimapp-1980.

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