Bryant v. State

• Citation: 397 S.W.2d 445
• Decision Date: 13 October 1965
• Docket Number: No. 38374,38374
• Parties: Dudley BRYANT, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 445

397 S.W.2d 445

Dudley BRYANT, Appellant, v. The STATE of Texas, Appellee.

No. 38374.

Court of Criminal Appeals of Texas.

Oct. 13, 1965.

Rehearing Denied Dec. 1, 1965.

Second Motion for Rehearing Denied Jan. 19, 1966.

Cofer, Cofer & Hearne, Austin, James A. Moore, Houston, for appellant.

Wallace T. Barber, Dist. Atty., San Marcos, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Presiding Judge.

The offense is felony theft; the punishment, six years confinement in the Texas Department of Corrections.

The testimony reveals that on the night of January 16-17, 1963, a four-wheel trailer containing 5600 pounds of feed was stolen from Mr. Ernest Ewald's property in Caldwell County, Texas. On the morning of the 17th Mr. Ewald found the lock broken and the gate to his property open; the trailer and feed, the value of which was at least $250.00 were gone.

Dudley Bryant, the appellant, had leased certain property known as the Kruez place, and had an option to buy. He had a residential trailer house located there, and had livestock on the land.

Three days after Mr. Ewald first discovered his property had been stolen, he was out on a Sunday drive with his family on a country road when he saw his trailer, clearly identifiable with his name marked on the side, sitting several hundred feet from the road behind some small bushes on the Kruez place. Mr. Ewald drove back into Lockhart and reported his discovery to Desmond Reed, Sheriff of Caldwell County, then accompanied the Sheriff to the location where the trailer had been seen. During the brief fifteen to twenty minutes since Ewald had seen the trailer, it had been moved and could not be seen from the road.

As Mr. Ewald and the Sheriff entered the gate to the Kruez place, the appellant came to meet them in a pickup and, in response to the Sheriff's question as to the location of the trailer, replied that it was 'sitting up on a hill,' and that they could get up there in the car. Intending to do so, the Sheriff and Ewald got in the Sheriff's car, following appellant, who was driving ahead in his pickup. They had only gone a short distance when appellant suddenly turned off the road and drove off through the mesquite bushes. Sheriff Reed testified that it was impossible for him to follow the appellant, who was 'driving about as fast as he could hold it * * * running over pretty good sized bushes.'

At this point the Sheriff and Ewald returned to the gate and called for assistance on the car radio. As soon as help arrived, Ewald and an officer went up the road in the direction the appellant had previously indicated. They found the trailer on a hill beside a dead tree, with brush piled inside it. The trailer had been saturated with some imflammable liquid, such as diesel or coal oil, and the front left corner was burning.

Sergeant Jim Riddles, Texas Ranger, testified that he talked with appellant several times after appellant had made bond and before his trial. The appellant gave the Ranger conflicting accounts as to his knowledge of the stolen property, first stating that he had not been at the Kruez place 'from Sunday to Sunday' during the week the property was stolen. He later contradicted this story, saying he had gone to the Kruez place on the Thursday morning the property was found to be stolen. On one occasion he also told Sergeant Riddles that when the feed was brought to his place he suspected that it was stolen, and he supposed it had been placed there by some persons from Austin in repayment for favors he had granted them.

Appellant's first contention is that this evidence is not sufficient to support the conviction because there was no evidence that he participated in the taking of the stolen property, or that he ever had possession of it.

The rule is well established that the unexplained possession of property recently stolen is a sufficient circumstance to authorize a jury to convict for theft of the property. Stubblefield v. State, Tex.Cr.App., 372 S.W.2d 539; Foster v. State, 170 Tex.Cr.R. 61, 338 S.W.2d 458; see also, 55 Tex.Jur.2d 480, Sec. 214 and cases cited.

The case of Compton v. State, 148 Tex.Cr.R. 53, 184 S.W.2d 630, involved similar circumstances. The conviction there was for cattle theft, and the appellant, relying upon the same grounds as does appellant here, claimed the evidence was not sufficient to support the conviction. Cattle belonging to the Lee Ranch were found on a ranch partly owned and partly leased by Mrs. Compton. Her son, the defendant in that case, managed the ranch for his mother. A deputy Sheriff was trailing the stolen cattle when he discovered a calf lying in the bushes, too tired to stay on its feet. The deputy reported this to the Sheriff who went out to the Compton ranch to investigate this development and as he approached the place where the calf had been found, he saw the defendant riding in a trot toward the calf. Upon seeing the Sheriff, Compton turned and went back toward the Compton ranch house with the Sheriff. At the house, while the Sheriff was talking to another person, the defendant continued to ride around behind the house and 'rode off in an easterly direction', making no explanation for his leaving. He returned fifteen to twenty minutes later, his horse winded and sweaty. A witness testified that he had seen Compton driving six head of cattle at an unusual rate of speed, and that when Compton had seen the witness, he quickly changed direction and disappeared with the cattle. The cattle were found some time later in a pasture on the Compton ranch with a fresh Compton brand over the old Lee brand. This Court held that the evidence was sufficient to sustain a finding that the defendant was in possession of the property, and was guilty of the theft, saying:

'* * * especially is this true where there are other circumstances which, taken in connection therewith, point to appellant's guilt, such as the conduct of appellant relative to the bull calf, later identified as one of the stolen cattle, and appellant's peculiar movements while this ranch was being searched by officers and others.' 184 S.W.2d 630, 634.

In the case before us, the circumstantial evidence is equally as damaging. Appellant was the lessee of the land upon which the stolen property was found, and he had living quarters and livestock there. The lessor testified that appellant was always there whenever he, the lessor, went by the Kruez place. When Ewald went after the Sheriff, the trailer was moved, and an attempt was made to destroy it by setting it afire. Appellant was the only person seen at the Kruez place around the time these events occurred. That appellant knew the trailer was on his land is undisputed; he told the Sheriff where it could be found.

The appellant correctly contends that even if the evidence was sufficient to show that he was in possession of the recently stolen property, no inference or presumption of guilt can arise from this fact unless that possession is unexplained, citing 5 Branch's Ann.P.C. 96, Sec. 2650.

Appellant made no explanation when first confronted about the trailer by the Sheriff, and he disappeared shortly after telling where it could be found. The only explanation of his possession of the stolen property was made to Sergeant Riddles several days after the trailer was found at the Kruez place. He stated to the Ranger that he suspected the property to be stolen when it was brought to his ranch by 'some characters out of Austin,' and that he supposed they left it for him in repayment for hospitality he had previously extended them. Other conflicting statements concerning his knowledge of the stolen property tended to reduce the credibility of this exculpatory statement. It was for the jury to determine if the appellant's exonerating statement was reasonable and probably true, and the jury was not required to accept the explanation offered by the appellant. Corley v. State, 160 Tex.Cr.R. 504, 272 S.W.2d 354; Stephens v. State, Tex.Cr.App., 154 S.W. 996; 5 Branch's Ann.P.C. 100, Sec. 2651 and cases cited.

The evidence of the unexplained possession of recently stolen property was sufficient to sustain a verdict of guilty, particularly when viewed in conjunction with appellant's unusual behavior and sudden disappearance when the Sheriff and owner came to find the trailer.

The appellant object to the charge of the court because it failed to include an instruction on exculpatory statements. The court instructed the jury that:

'If you believe from the evidence, or have a reasonable doubt thereof, that persons other than the defendant, who were acting without the defendant and out of the defendant's presence, took the property in question from Ernest Ewald, then you shall acquit the defendant. * * *'

Under these circumstances, there was no error in refusing defendant's requested instruction on exculpatory statements. Baker v. State, 130 Tex.Cr.R. 649, 95 S.W.2d 401; Hays v. State, 129 Tex.Cr.R. 156, 84 S.W.2d 1008; Dixon v. State, 128 Tex.Cr.R. 584, 83 S.W.2d 328; Tidwell v. State, 40 Tex.Cr.R. 38, 47 S.W. 466.

Appellant's Formal Bill of Exception No. 2, as qualified, indicates that a witness for the State refreshed his memory prior to the trial by reading from a written transcript of his Grand Jury testimony. Appellant was given an opportunity to examine this transcript, which had been prepared from a recording made at the Grand Jury proceedings, and appellant's counsel cross-examined the witness after this inspection. The District Attorney admitted that the document was not a verbatim transcription of the recording and that portions of the witness' testimony may have been omitted. For this reason, counsel for the defendant requested the production of the recording from which the transcript was made, and that request was refused, as was appellant's subsequent request to direct the District Attorney to produce the recording for incorporation into the record as part of ap...