Fillmore v. State, 13-81-201-CR

• Decision Date: 26 August 1982
• Docket Number: No. 13-81-201-CR,13-81-201-CR
• Citation: 647 S.W.2d 300
• Parties: Harvey FILLMORE, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 300

647 S.W.2d 300

Harvey FILLMORE, Appellant, v. STATE of Texas, Appellee.

No. 13-81-201-CR.

Court of Appeals of Texas Corpus Christi.

Aug. 26, 1982.

Rehearing Denied Feb. 3, 1983.

James Bates, Edinburg, for appellant.

Reynaldo Cantu, Jr., Criminal Dist. Atty., Brownsville, for appellee.

Before NYE, C.J., and YOUNG and GONZALEZ, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from a conviction for theft. After trial by jury, the court assessed punishment at ten years in the Texas Department of Corrections. The sentence was probated. The sufficiency of the evidence is the challenge on appeal.

The appellant owned and operated a shop in Harlingen, Texas, known as the Valley Gold Exchange which bought and sold secondhand personal property. On March 19, 1981, the appellant purchased a gold bracelet and gold ring from an eighteen-year-old woman, Rosa Villela. Villela had previously stolen the jewelry from the home of Angelita Ramirez.

The evidence, viewed in the light most favorable to the jury verdict, shows that Gracie Rubio, an employee at the Valley Gold Exchange, was minding the appellant's shop when Villela came in to sell the stolen jewelry. Villela told Rubio that the jewelry belonged to her mother and that her mother wished to sell it. She explained that her father would not give her mother any money, so while her parents were down at the beach, she had come to sell the jewelry. Rubio examined the jewelry but had difficulty appraising the bracelet because it contained two different kinds of gold. Rubio then telephoned the appellant, the owner of the shop. The context of that conversation does not appear in the record, but after making the call, Rubio offered to purchase the bracelet for $747.00. There is nothing in the record to indicate in what manner Rubio and/or the appellant arrived at this figure, although there was testimony by Rubio that the normal procedure was to weigh the jewelry, determine the karat, and then pay a fixed price per unit of weight depending upon the price of gold at that time. After paying Villela for the bracelet, Rubio offered to purchase the ring for approximately $70.00. She informed Villela, however, that the appellant was on his way to the shop and that if she would wait, he would possibly offer her a higher price. Villela remained at the shop for several hours. When appellant arrived, he bought both pieces of jewelry for $1,058.00. Rubio testified that Villela told appellant the same story that she had been told. The evidence shows that Villela was paid in cash, mostly small bills.

The record shows that appellant did not require Villela to show any identification. He did not keep any records of the transaction, nor did he record Villela's physical description, name or address, or a description of the property. He also failed to obtain a signed warranty from Villela that she had the right to possess the jewelry.

On March 25, 1981, Zeke Ramirez, the victim's son, was scouting the pawn shops in Harlingen in an attempt to locate his mother's stolen jewelry. At the Valley Gold Exchange, he described the stolen bracelet and ring to the store clerk, Gracie Rubio. She admitted that the items had gone through the store. Later, she explained that the appellant had purchased the jewelry that was being inquired about from a young woman the preceding week. The son telephoned his mother, who along with his father, Ramiro Ramirez, came to appellant's shop. The police were also contacted. When Mr. and Mrs. Ramirez arrived at the Valley Gold Exchange shop, they were likewise told by clerk Rubio that appellant had purchased the jewelry from a young woman. Shortly thereafter, the appellant entered his shop. He told substantially the same story. At some point during this discussion, Guy Anderson, the Chief of Police in Harlingen, entered the store and listened to the conversation between appellant and the Ramirezes.

Chief Anderson testified that he overheard the appellant tell the Ramirezes that he thought the jewelry was worth between four and five thousand dollars. Mr. Ramirez testified that he had purchased the bracelet for his wife in 1974 for $610.00, and the ring in 1978 for $631.00. He did not estimate the jewelry's value at the time it was stolen or at the time of trial.

On appeal, the issue is whether this evidence is sufficient to sustain the conviction under Sec. 31.03 of Tex.Penal Code Ann. It is axiomatic that the State has the burden to prove all of the elements of an offense. One of the elements of the offense of receiving stolen property (now consolidated with other theft offenses in Sec. 31.03 Tex.Penal Code Ann. [Vernon 1974] ) is that the accused knew that the property was stolen when he received it. In fact, knowledge that the property is stolen is the gravamen of the offense of receiving stolen property. Pool v. State, 528 S.W.2d 255 (Tex.Cr.App.1975); Pannel v. State, 121 Tex.Cr.R. 515, 51 S.W.2d 398 (Tex.Cr.App.1932); Miller v. State, 507 S.W.2d 203 (Tex.Cr.App.1974).

Appellant contends that the State failed to prove that he knew the jewelry was stolen when he purchased it.

It is well settled that knowledge that property was stolen may be implied from the circumstances surrounding the accused's acquisition of the property. Ehrman v. State, 580 S.W.2d 581 (Tex.Cr.App.1979); Walker v. State, 539 S.W.2d 894 (Tex.Cr.App.1976).

In the instant case, a circumstance which authorized the jury to find the requisite knowledge was the appellant's failure to obtain certain record information. Sec. 31.03(c)(3) Tex.Penal Code Ann. (Vernon Supp.1982) provides:

"(3) an actor engaged in the business of buying and selling used or secondhand personal property, or lending money on the security of personal property deposited with him, is presumed to know upon receipt by the actor of stolen property (other than a motor vehicle subject to Article 6687-1, Vernon's Texas Civil Statutes) that the property has been previously stolen from another if the actor pays for or loans against the property $25 or more (or consideration of equivalent value) and the actor knowingly or recklessly:

(i) fails to record the name, address, and physical description of identification number of the seller or pledgor;

(ii) fails to record a complete description of the property, including the serial number, if reasonably available, or other identifying characteristics; or

(iii) fails to obtain a signed warranty from the seller or pledgor that the seller or pledgor has the right to possess the property. It is the express intent of this provision that the presumption arises unless the actor complies with each of the numbered requirements. (emphasis added)

Appellant admits that the uncontroverted testimony is that the appellant never maintained any of the records required by this provision of the Penal Code. Appellant contends, however, that the evidence establishes a theory of good faith purchase, which the State failed to refute, and which overcomes the presumption of knowledge. In this case, the testimony of Angelita Ramirez and Guy Anderson, both State's witnesses, and Gracie Rubio, a defense witness, shows that appellant explained how he had purchased the property from Rosa Villela and that Villela had lied to him about the property belonging to her mother. ¹ Rosa Villela testified for the State and admitted on cross-examination that she had lied to both Rubio and the appellant.

This explanation is not one which rebuts the Sec. 31.03 presumption; and the issue of appellant's knowledge was properly presented to the jury for the...