Anderson v. State

Decision Date17 February 1994
Docket NumberNo. 01-92-01273-CR,01-92-01273-CR
Citation871 S.W.2d 900
PartiesJames Mathis ANDERSON, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
CourtTexas Court of Appeals

John F. Carrigan, Houston, for appellant.

John B. Holmes, Jr., Scott A. Durfee, Tony Dodson, Houston, for appellee.

Before OLIVER-PARROTT, C.J., and WILSON and O'CONNOR, JJ.

OPINION

O'CONNOR, Justice.

A jury found the appellant guilty of theft by receiving. The court assessed punishment, enhanced by two earlier felony convictions, at 25-years imprisonment. We affirm the conviction, but remand to the trial court for a new punishment hearing.

Fact Summary

The Houston Police Department received a call that a man was "down" in a car in a parking lot, which meant that someone was sleeping, passed out, or dead. A patrol car found the car in a crowded parking lot of a shopping mall. Before approaching the car, the officers ran a check on the car's license plate, and it was reported as stolen from another car. From outside of the car, the officers could see that the steering column of the car was broken.

When the officers awakened the appellant, he told them he was waiting on friends, but did not know where they were or when they would be back. The officers asked the appellant to step out of the car, and patted him down, looking for weapons. The officer then ran a check on the car's identification (VIN) number, and learned the car was reported stolen. The appellant was placed under arrest.

Inside the car, the officers found the car owner's barber kit, the appellant's belongings, including his clothing and photographs of his wife and child, and numerous syringes. The trunk was full of hubcaps.

Notice of car theft

In point of error one, the appellant argues the evidence is insufficient to support a verdict of guilty as to theft by receiving because there is no evidence in the record that he knew the vehicle in which he was sleeping was stolen or that he intended to appropriate it from anyone.

In reviewing the sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989); Glass v. State, 761 S.W.2d 806, 807 (Tex.App.--Houston [1st Dist.] 1988, no pet.). It is not relevant whether the reviewing court believes the evidence or that it is "outweighed" by the opposing side's evidence; if there is any evidence that could establish guilt beyond a reasonable doubt, the conviction will not be reversed. Glass, 761 S.W.2d at 807.

The appellant contends he was merely sitting in the car waiting for friends, and that he was picked up that day by a friend who was driving the car. He argues that unexplained possession of stolen property alone is not enough to show he had knowledge the property was stolen. The State contends the appellant had to know the car was stolen because the steering column was broken, he had no keys, and the trunk lock had been jimmied. It also contends it did not have to prove the appellant intended to appropriate the car, only that he intended to deprive the owner of his property.

We agree with the State. There is evidence to support the inference that the appellant knew the car was stolen because it was obvious the steering column had been broken, he did not have the keys to the car, and the trunk had been jimmied.

There is no presumption of guilt of the offense of receiving stolen property from the unexplained possession of recently stolen property. Hynson v. State, 656 S.W.2d 460, 462 (Tex.Crim.App.1983); Lopez v. State, 820 S.W.2d 898, 899 (Tex.App.--Houston [1st Dist.] 1991, no pet.). The unexplained possession of recently stolen property can, however, with other circumstances, support an inference that an accused knew he possessed stolen property. Hynson, 656 S.W.2d at 462; Lopez, 820 S.W.2d at 899. Here, these circumstances permit a rational factfinder to find the appellant knew the car was stolen.

The appellant also argues the State did not show he intended to appropriate the car. The appellant was in the car. The owner testified he had not given him consent to be there. The State presented evidence that the appellant intended to deprive the owner of his property, and was exercising control over the car, without the consent of its owner. This is all that is required under the Texas Penal Code, and it was followed in the appellant's indictment and jury charge. The code reads:

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

(b) Appropriation of property is unlawful if: (1) it is without the owner's effective consent; (2) the property is stolen and the actor appropriates the property knowing it was stolen.

TEX.PENAL CODE ANN. § 31.03 (Vernon 1989).

The code defines "appropriate" as to acquire or otherwise exercise control over property other than real property. TEX.PENAL CODE ANN. § 31.01(5)(B) (Vernon 1989).

We hold there is sufficient evidence to show the appellant knew the car was stolen. The State met its burden by showing the appellant exercised control over the car by possessing it without the owner's consent. We overrule point of error one.

Value of the car

In point of error two, the appellant contends the evidence is insufficient to sustain a verdict of guilt of theft by receiving because there is insufficient evidence of the fair market value of the vehicle.

The appellant argues that the only evidence in the record about the value of the car was the $1500 the owner had paid for it several weeks before the theft. Because the car was 10 years old, the appellant contends the State cannot use the purchase price as the value of the car. The State contends the appellant did not rebut its evidence of the value of the car, and case law establishes that the owner can testify to what he paid for the property.

We agree with the State. The owner of property unlawfully taken from him may testify about the value of the property even though he is not qualified to testify as an expert on fair market value of the property. Johnson v. State, 676 S.W.2d 416, 418 (Tex.Crim.App.1984); see Sanders v. State, 814 S.W.2d 784, 786-87 (Tex.App.--Houston [1st Dist.] 1991, no pet.). Where the owner of property testifies that a short time before the theft he paid a certain sum of money for the property, this is sufficient to make a prima facie case of the fair market value of the item unlawfully taken. Johnson, 676 S.W.2d at 418. In this case, the State made its prima facie showing by offering the testimony of the owner that he paid $1500 for the car. We hold the evidence is sufficient to sustain the jury verdict that the value of the car was between $750 and $20,000.

We overrule point of error two.

Car was same one reported stolen

In point of error three, the appellant contends the evidence is insufficient to sustain a verdict of guilt of theft by receiving because the evidence fails to demonstrate that the vehicle stolen from the complainant was the same vehicle in which the appellant was found sleeping.

The appellant argues there is no testimony in the record on the vehicle identification number of the complainant's car, or a showing that the vehicle identification number of the car in which he was found matched that of the complainant's. He argues there is no evidence to connect him to the vehicle stolen from the complainant.

The appellant was arrested in a 1983 Oldsmobile Cutlass, and inside was a kit containing barber's tools. Officer Morris testified that he ran a check on the vehicle identification number of the car in which the appellant was found and it came back as a stolen vehicle from "this location on 21st Street." The complainant, Joe Valdez, testified he was a student teacher at the Wilford Beauty Academy, located on 18th Street, and his car, a 1983 Oldsmobile Cutlass, had been stolen while he was at work, and that he had left his barber's tools inside. He said the police department told him two days after his car was stolen that they had found it. He identified the car when he retrieved it. The evidence linking the car in which the appellant was found to that stolen from the complainant is: the car models are the same; the complainant's barber kit was found in the car with the appellant, and the complainant said he left the barber kit in the car; the complainant identified the car in which the appellant was found as his car; the officer indicated that the vehicle identification number was the same as one stolen from 21st Street, and the police department called the complainant and told him his car was stolen. Cf. Trevino v. State, 761 S.W.2d 562, 571 (Tex.App.--San Antonio 1988, pet. ref'd) (jewelry taken in burglary was matched to burglary reports and court held a sufficient link existed when victims were called in and identified their property).

A rational trier of fact could have found beyond a reasonable doubt that the car in which the appellant was found was the same one stolen from Valdez. We overrule point of error three.

Extraneous offenses

In point of error four, the appellant contends the prosecutor caused error by presenting extraneous offenses to the jury after having told the trial court that he did not intend to do so during pretrial motions.

The appellant argues that during cross-examination of a defense witness, the State, over objection, asked questions regarding the appellant's treatment for heroin addiction. The appellant's objection at trial was to the relevancy of the questions. The appellant's argument here is that at pretrial the prosecutor said he would not mention the extraneous offenses, but then he did.

On appeal, a defendant must make the same objection he made at trial, or waive the error. Crocker v. State, 573 S.W.2d 190, 205 (Tex.Crim.App. [Panel Op.] 1978); Weaver v. State, ...

To continue reading

Request your trial
20 cases
  • State v. Gartner
    • United States
    • Nebraska Supreme Court
    • February 8, 2002
    ...1340 (1972); Lester v. Com., 30 Va.App. 495, 518 S.E.2d 318 (1999); State v. Merchant, 871 S.W.2d 102 (Mo.App.1994); Anderson v. State, 871 S.W.2d 900 (Tex. App.1994); Roundtree v. State, 191 Ga. App. 423, 382 S.E.2d 173 (1989); Brewer v. Com., 632 S.W.2d 456 (Ky.App.1982) (cases finding pu......
  • Bui v. State
    • United States
    • Texas Court of Appeals
    • April 28, 1998
    ...at 541. If there is any evidence that could establish guilt beyond a reasonable doubt, the conviction will not be reversed. Anderson v. State, 871 S.W.2d 900, 902 (Tex.App.--Houston [1st Dist.] 1994, no pet.). Finally, we position ourselves as a final due process safeguard, ensuring only th......
  • C.S. v. State
    • United States
    • Florida District Court of Appeals
    • March 11, 2020
    ...sufficient evidence at trial from which the jury could infer that the truck was worth between $750 and $1500."); Anderson v. State, 871 S.W.2d 900, 903 (Tx. App. 1994) ("Where the owner of property testifies that a short time before the theft he paid a certain sum of money for the property,......
  • Hines v. State, 06-97-00106-CR
    • United States
    • Texas Court of Appeals
    • July 2, 1998
    ...evidence that could establish guilt beyond a reasonable doubt, the conviction will not be reversed for legal insufficiency. Anderson v. State, 871 S.W.2d 900, 902 (Tex.App.--Houston [1st Dist.] 1994, no pet.). We position ourselves as a final due process safeguard, ensuring only the rationa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT