Carlsen v. State

• Decision Date: 01 March 1983
• Docket Number: No. 63987,63987
• Parties: George CARLSEN, Appellant, v. The STATE of Texas, Appellee. En Banc
• Court: Texas Court of Criminal Appeals

Page 444

654 S.W.2d 444

George CARLSEN, Appellant, v. The STATE of Texas, Appellee.

No. 63987.

Court of Criminal Appeals of Texas,

En Banc.

March 1, 1983.

Rehearing Denied July 20, 1983.

Norman Arnett, Rotan, for appellant.

Frank Ginzel, Dist. Atty., and Russell L. Carroll, Asst. Dist. Atty., Colorado City, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is an appeal from a conviction for theft of cattle. Punishment was assessed at ten years' confinement and a $1,000 fine. Appellant in his sole ground of error challenges the sufficiency of the evidence. We reverse and order a judgment of acquittal be entered in this cause.

The State introduced six witnesses in its case-in-chief. Gerald Kent testified that he owned, or leased, a small ranching and farming operation in Fisher County. He owned over one hundred unbranded cows and calves including the "popular" black bald-faced or motley-faced calves produced by crossing the Hereford and Angus breeds. In October of 1978, he hired appellant, who to his knowledge was not engaged in the cattle business, to feed his cattle when he was unable to drive out to his ranch because of bad weather or poor health. Kent gave appellant one of the three keys to the locked pastures. Kent continued visiting the ranch and personally feeding the cattle at least every three days throughout the winter.

Some five months after hiring appellant, on Friday, March 23, 1979, Kent received a phone call from appellant who stated that it had rained heavily at the ranch and that Kent should stay at home and let appellant feed the cattle. Kent agreed and did not go to the ranch until the next Monday when he, his wife and his foreman, G.W. (Slim) Hankins, drove out to feed the cattle. He testified that he became suspicious when he noted that it had apparently not rained and that there had been some unusual activity around the east corrals: the outside gate to one of the corrals had been opened, hay had been fed inside the corral, the ground was disturbed by fairly fresh animal tracks and his stock trailer contained cattle waste and had been moved from the south pasture to the east corrals. The next Tuesday, March 27, 1979, he and his foreman rounded up and counted the cows and discovered some 15 cows and calves were missing.

About 10 days later, Kent identified two of his missing calves at a ranch owned by Sam McGee near Electra. The calves were located in a pasture with approximately 300 other calves of a similar breed. He described the calves as "a black motley-faced steer calf" and "a black motley-faced bull calf." He had given no one permission to remove or sell any of his cattle.

Foreman G.W. (Slim) Hankins testified that he worked for Kent, had a key to the pastures and had never given the key to anyone else. ¹ He was with Kent on the Monday when the unusual activity around the corrals was discovered, although he did not notice any unusual tracks. He also testified that he, along with Kent, had immediately identified the two calves on Sam McGee's ranch as ones missing from Kent's ranch. He described the calves as one "black bald-faced calf" and one "black motley-faced calf."

Farmer James Ross testified that on Friday, March 16, 1979, he sold appellant a stock trailer, pictures of which were introduced into evidence.

Tommy Clay, foreman for Haskell Livestock Auction, identified appellant as the man who brought four calves to the auction on Saturday, March 17, 1979. Clay identified the stock trailer sold to appellant by Ross as the trailer appellant used on that Saturday. Clay testified that appellant told him all four animals were bulls when, in fact, one was a heifer. It was Clay's opinion that appellant did not know much about cattle.

Clay's job included assigning each animal a number beginning with zero according to the animal's arrival at the weekly auction. Appellant's cattle were numbered 1142, 1143, 1144, and 1145. Clay identified a consignment sheet on which he had written descriptions of the calves. Calf 1143 was described as a "black motley-faced bull." Calf 1145 was described as a "black white-faced bull." Clay further testified that the descriptions, as written, would not be sufficient to distinguish the calves from others of the same "popular," "common" breed. He also stated he could not now identify the calves. Calves 1143 and 1145 were sold to Sam McGee of Electra.

Gertrude Hopkins, a bookkeeper for the Haskell Livestock Auction, identified two checks made out to appellant as his proceeds from the sale of the calves and four scale tickets, one on each calf sold on March 17th. The scale tickets show that calf 1143, a black motley-faced bull, and calf 1145, a black white-faced steer, were sold to McGee.

The last State's witness, Roy L. Montgomery, identified appellant as the man he had sold a horse to at the Haskell Livestock Auction on March 17, 1979.

The case was submitted to the jury with an instruction on circumstantial evidence. A conviction based on circumstantial evidence must exclude every other reasonable hypothesis except the guilt of the accused. Moore v. State, 640 S.W.2d 300 (Tex.Cr.App.1982); Autry v. State, 626 S.W.2d 758 (Tex.Cr.App.1982); Swink v. State, 617 S.W.2d 203 (Tex.Cr.App.1981); Schershel v. State, 575 S.W.2d 548 (Tex.Cr.App.1979); Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977); Flores v. State, 551 S.W.2d 364 (Tex.Cr.App.1977). It is not required that the circumstances should, to a moral certainty, actually exclude every hypothesis that the act may have been committed by another person, but that the hypothesis is a reasonable one consistent with the circumstances and the facts proved. Moore, supra; Autry, supra; Swink, supra; Flores, supra. Each fact need not point directly and independently to the guilt of the accused, as the cumulative effect of all the incriminating facts may be sufficient to support the evidence. Stogsdill, supra; Flores, supra; Swink, supra. However, proof which amounts only to a strong suspicion or mere probability is insufficient. Moore, supra; Autry, supra; Schershel, supra; Stogsdill, supra.

Ordinarily we would examine the evidence in the light most favorable to the verdict. However, in reviewing a circumstantial evidence conviction we do not use that standard, and any language in prior cases to the contrary is hereby expressly disavowed. Instead, as we stated in Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969):

"In ascertaining whether the guilt of the accused has been established to a moral certainty, [we] will review the evidence in light of the presumption that the accused is innocent. [We] will not presume any acts against the accused that are not shown to have been committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged."

Id. at 916. In determining whether incriminating circumstances are sufficient, each case must be tested by its own facts. Flores, supra.

Summarizing the evidence, we find: (1) in October, Kent hired the appellant, who was not in the cattle business; (2) on Friday, March 16th, appellant bought a stock trailer; (3) on Saturday, March 17th, appellant sold four calves at the Haskell Livestock Auction; (4) two of the calves were sold to Sam McGee, of Electra; (5) on Friday, March 23, appellant called Kent and told him it was raining and that he would feed the cattle; (6) on Monday, March 26th, Kent and Hankins went to the ranch and, after noticing that it had not rained and that some unusual activity had occurred around the east corrals, concluded that some of Kent's cows had been stolen; (7) on Tuesday, March 27th, Kent verified that several cows and calves were missing; and (8) some 10 days later, Kent located two of his missing calves in a herd of around 300 similar animals on Sam McGee's ranch. The evidence also showed that appellant had easy access to the corrals and the calves, although not exclusive access.

While the evidence adduced at trial may certainly raise a strong suspicion of appellant's guilt, this is not sufficient for conviction beyond a reasonable doubt. The record is devoid of any evidence to show that the appellant stole any of Kent's cattle. Specifically, there was no evidence to show that the cattle sold at the auction by appellant were stolen from Kent's ranch. The auction foreman could not identify the particular calves as Kent's. The business records contained only a general description that could apply to any number of calves of the same breed and age. More importantly, there is no probative evidence to show that the calves identified by Kent at McGee's ranch were the same animals sold by appellant at the Haskell Livestock Auction.

The only testimony in the record showing that the calves Kent and Hankins identified were the same calves sold by appellant at the auction was given by Foreman Hankins: "Both of us said about the same time, 'There's one of calves [sic] right there.' And then this fellow, McGee said, 'That's one of the calves I bought at Haskell.' " That statement does not prove that the calf was bought from the appellant. Furthermore, hearsay evidence, even admitted without objection, constitutes no evidence, is without probative force, and cannot be used in determining the sufficiency of the evidence. Alexander v. State, 587 S.W.2d 729 (Tex.Cr.App.1979); Ayers v. State, 570 S.W.2d 926 (Tex.Cr.App.1978); Cooper v. State, 527 S.W.2d 563 (Tex.Cr.App.1975); Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr.App.1975).

McGee was surely in a position to identify the two calves found on his ranch as the same two calves bought by him at the Haskell Livestock Auction. However, McGee was not called as a witness nor was his absence accounted for. ² As we have stated before:

"Where the circumstantial evidence relied on by the prosecution is...