Berg v. State

• Decision Date: 14 November 1984
• Docket Number: No. 451-83,451-83
• Citation: Berg v. State, 747 S.W.2d 800 (Tex. Crim. App. 1984)
• Parties: John BERG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 800

747 S.W.2d 800

John BERG, Appellant, v. The STATE of Texas, Appellee.

No. 451-83.

Court of Criminal Appeals of Texas En Banc.

Nov. 14, 1984.

Rehearing Denied March 30, 1988.

Stan Brown, Abilene, Arch C. McColl, III, David W. Coody, Dallas, for appellant.

Patricia A. Elliott, Former Dist. Atty., Jorge Solis, Dist. Atty., and Michael Watson, Asst. Dist. Atty., Abilene, Robert Huttash, State's Atty., and Cathleen Riedel, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction of third degree felony theft of a diamond under V.T.C.A. Penal Code, § 31.03(a) and (b)(1). The punishment is three years confinement in the Texas Department of Corrections. On direct appeal, the Eastland Court of Appeals affirmed appellant's conviction in an unpublished opinion delivered March 24, 1983. We granted appellant's supplemental petition for discretionary review to determine whether the evidence is sufficient to sustain his conviction. We affirm.

The evidence, reviewed in a light most favorable to the verdict, reveals that Karen Bonham's residence was burglarized by a juvenile on July 9th, 1980. Among other things, a wedding set consisting of a wedding band and engagement ring were stolen. The engagement ring contained a one-quarter carat diamond.

Subsequent investigation of the burglary, including discussion with the juvenile, led the investigating officer to the Goldsmith Shop, an Abilene jewelry store managed and co-owned by the appellant. The officer's examination of the jeweler's records revealed that on July 11, 1980, the appellant had issued a twenty-three dollar check for "scrap cash." The evidence establishes that this check was used to purchase the rings from the juvenile burglar. The investigating officer then directed Bonham to the Goldsmith Shop in her search for the missing jewelry.

On July 17, 1980, Bonham went to the Goldsmith Shop and discussed with appellant the possibility that he was in possession of her rings. "After much persuasion," appellant allowed Bonham to search through scrap metal that had been packaged for the smelter. Bonham immediately recognized her rings. The engagement ring no longer contained the one-quarter carat diamond, as two of the mounting prongs were clipped away and the diamond had been removed. The evidence establishes that the diamond was in the ring when it entered appellant's possession. ¹ Bonham testified that she then described the diamond to appellant, who said he would contact her later.

The next day, on July 18, 1980, the appellant phoned Bonham and informed her she could pick up the rings. Appellant gave her a ziplock bag containing her rings and a stone wrapped in Scotch tape. Bonham testified that she believed the stone to be the diamond originally mounted in her engagement ring.

Although the package containing the stone bore the notation "DIAMOND", subsequent events revealed that it was an inexpensive cubic zirconia. Bonham testified that she did not tell appellant she would accept a cubic zirconia in replacement for her diamond.

The evidence establishes that the value of the missing one-quarter carat diamond exceeded $200, but was less than $10,000.

In a two-count indictment, appellant was charged with theft in violation of V.T.C.A. Penal Code, § 31.03(a) and (b)(1). The first count alleged theft of the wedding set on July 11, 1980, the day appellant purchased the rings from the juvenile. The second count alleged theft of the diamond on July 18, 1980, the day appellant substituted a cubic zirconia for Bonham's diamond. The trial court submitted the case to the jury under the second count of the indictment, but not the first.

Under the new penal code, there are two distinct methods of committing theft. ² Theft may be committed by appropriating stolen property knowing it was stolen by another, § 31.03(b)(2), or theft may be committed by appropriating the owner's property without his effective consent, § 31.03(b)(1).

In Casey v. State, 633 S.W.2d 885 (Tex.Cr.App.1982), this Court held that when the proof at trial shows a theft by appropriating stolen property knowing it was stolen by another, 31.03(b)(2), but theft is alleged under 31.03(b)(1), the evidence is insufficient to sustain the conviction. Thus, if the evidence establishes only a transfer of stolen property, and fails to show that the defendant was involved in the initial appropriation from the owner, the State must proceed under 31.03(b)(2) or the conviction will be reversed.

In a supplemental petition for discretionary review, appellant contends that the evidence is insufficient to support the verdict. Specifically, appellant relies on Casey and asserts that the State has failed to prove that appellant was involved, either personally or acting as a party, in the initial appropriation of the property from its owner. While appellant's assertion is correct, his reliance on Casey is misplaced.

The appellant in this case was not tried for theft based on the transfer of stolen property to him, as was the defendant in Casey. On the contrary, appellant was tried for theft based on his own appropriation of the diamond after it was in his possession. The theory was not that appellant was a party to the theft by the juvenile, but that the appellant was a principal in the subsequent theft by deception. ³

Under Casey, and the case as submitted to the jury, the appellant held the rings and diamond lawfully on July 11, 1980, the day he purchased them from the juvenile burglar. At that time, under Casey, he was not guilty of appropriating property without the owner's effective consent.

On July 17, 1980, appellant learned that Bonham had a greater right to possess it. She was the true owner. V.T.C.A. Penal Code, § 1.07(24).

The next day, July 18, 1980, with knowledge of the circumstances, V.T.C.A. Penal Code, § 6.03(b), appellant gave Bonham a cubic zirconia instead of her diamond. ⁴ That was the day he committed theft. There is no need to show he was a party to the burglary. Under these facts appellant committed a separate offense when he switched the stones. And as the second count of the indictment alleged, and the jury found by its unanimous verdict, on July 18, 1980, appellant did then and there unlawfully, knowingly and intentionally appropriate a diamond without the effective consent of the owner with intent to deprive her of it.

The verdict is supported by the evidence, and the judgments of the Court of Appeals and the trial court are affirmed.

Although the case was submitted to the jury on the second count of the indictment which alleged the offense was committed July 18, 1980, and that was the verdict reached by the jury, we note that the judgment of the court erroneously recites that the offense was committed on July 11, 1980.

When the judgment is contrary to the verdict, this Court has authority to reform and correct a judgment to reflect the true finding of the fact finder. Article 44.24(b), V.A.C.C.P.; Milczanowski v. State, 645 S.W.2d 445 (Tex.Cr.App.1983); Joles v. State, 563 S.W.2d 619 (Tex.Cr.App.1978); Teamer v. State, 557 S.W.2d 110 (Tex.Cr.App.1977).

It is so ordered.

TEAGUE, J., dissents.

CLINTON, Judge, dissenting.

In this case, the court of appeals found the evidence sufficient to support a conviction for theft. That evidence neither establishes that appellant participated in the initial acquisition of the property, nor that he exercised control over the previously stolen property knowing it was stolen by another.

In his petition for discretionary review, appellant correctly pointed out that a panel opinion of this Court has construed our present theft statute to proscribe only "two distinct" types of conduct--what would have essentially constituted "theft" and "receiving and concealing" under old Articles 1410 ¹ and 1430, ² Vernon's Ann.P.C. (1925), respectively--focusing primarily on the manner in which the actor acquired the property. Casey v. State, 633 S.W.2d 885 (Tex.Cr.App.1982). In other words, appellant's petition relies on the holding of Casey, supra, that V.T.C.A. Penal Code, § 31.03(a) and (b)(1), ³

"requires [in addition to the express elements of the offense,] that the accused participate, either personally or acting as a party in the initial unlawful [actual taking] ⁴ of the property from its owner. See Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976)."

Casey, supra, at 887.

Appellant, like Casey, was indicted for conduct proscribed by § 31.03(a) and (b)(1), supra. Thus, he naturally argues in his petition for discretionary review:

"The facts of this case fall directly within the rule set out in Casey. Here, there is not one whit of evidence that in any way connects the Appellant to the burglary of the Complainant's house either as an actor or a party. It is, in fact, undisputed that Appellant had nothing to do with the initial appropriation of the diamond ring. Absent such proof, Casey makes it clear that the evidence is insufficient to prove a violation of § 31.03(b)(1) as alleged. [Emphasis original]."

The Assistant State Prosecuting Attorney contends that Casey should be overruled because, among other reasons, it places a burden on the State by adding an additional element to the constituents of theft which was not only uncontemplated by the Legislature, but is in fact directly contrary to the express intent of Chapter 31.

Thus the issue for review has been clearly drawn. The soundness of Casey--its rationale having not been tested by rehearing before the court en banc--was the question on which we granted review in this cause. But the majority opinion has wholly failed to address appellant's contention, and in fact has reached a result in this case which is not attainable without overruling Casey.

I would address the question presented for review and in the doing expressly overrule Casey as the most unsupportable...