Freeman v. State

Citation654 S.W.2d 450
Decision Date09 March 1983
Docket NumberNo. 63863,63863
PartiesElmer Lavaughn FREEMAN, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
OPINION

ONION, Presiding Judge.

Appeal is taken from a conviction for theft of property of the value of more than two hundred dollars ($200.00) but less than ten thousand dollars ($10,000.00). Punishment was assessed by the jury at ten (10) years' imprisonment and a fine of five thousand dollars ($5,000.00), probated.

In the two count indictment the appellant was charged with the theft of liquid fertilizer on or about August 17, 1978 and on or about August 21, 1978.

The jury convicted the appellant on both counts. The court granted a new trial and set aside the conviction based on count one. See Article 40.09, § 12, V.A.C.C.P. (1965), then in effect. The appeal is based on the conviction arising out of the second count alleging theft on or about August 21, 1978.

At the outset we are confronted with the challenge to the sufficiency of the evidence.

Kenneth Neal Smith was a truck driver for the Phillips 66 Company liquid fertilizer plant in Katy. He knew appellant Freeman when Freeman was a truck driver for another fertilizer company which had at one time kept its tanks on the Phillips 66 property in Katy. Smith recalled seeing the appellant in January, 1978, near Victoria. At the time appellant was in his blue and white Peterbilt truck with a blue tank. He was "breaking in" a new driver named Phillip Howell.

About March 1, 1978, Smith saw Howell in a new Chevrolet pickup at the Phillips 66 plant in Katy. They talked about the pickup. Two days later Howell returned and he and Smith went into Houston to another fertilizer company for which Smith knew appellant and Howell hauled fertilizer. Howell permitted Smith to use the pickup for the weekend. Shortly thereafter, Howell offered to give Smith the pickup if Smith assisted him in stealing fertilizer from Phillips 66. Smith agreed and together they checked out the Katy plant. Thereafter, no action was taken until August. On August 16, 1978, after a phone call, Smith met Howell at the Rice Association Elevators in Katy about 11:30 p.m. Howell was in the blue and white Peterbilt. After midnight on August 17th, Smith and Howell went to the Phillips 66 plant. Smith used his key to the pump room and Howell's truck was filled with liquid fertilizer. Both wore gloves. Two nights later, August 19th, Smith and Howell repeated the operation. Again on August 21st more fertilizer was taken by Smith and Howell.

Smith related that he had last seen the appellant in January; that the appellant had not been present at the time of his conversations with Howell or the time of the thefts; that only he and Howell were "in cahoots" about stealing the fertilizer.

Apparently as a result of earlier difficulties and a lie detector test Smith had agreed to cooperate with law enforcement officers. The thefts on August 17th and 21st were under the surveillance of the officers. Smith stated he notified the officers about the August 19th plans, but apparently there was no surveillance on that date.

M.L. Scott, manager of the Phillips 66 plant, testified he came to the plant on August 17th and determined 6,014 gallons of liquid fertilizer were taken, it had a value of $4,500.00, and that on August 21st liquid fertilizer of the value of $4,420.00 was taken. Scott did not give permission to anyone for the fertilizer to be taken. Scott did not know Howell. He last saw appellant some two or three years before when the appellant worked for another company who had storage tanks on the Phillips 66 plant property.

E.G. Michel, license and weight trooper of the Department of Public Safety, testified on August 17, 1978, he stopped Howell outside of Hempstead in the 1975 Peterbilt truck shown to be registered to the appellant and issued a citation for overweight. He had been instructed to be on the "lookout" for the truck and to stop it and weigh it, which he did.

K.R. Jordan, detective with the Harris County Organized Crime Task Force, followed Howell in the early morning hours when he left the Phillips 66 plant on August 17th. After the truck stopped at Hillsboro, Jordan and fellow officer, Wayne Jose, proceeded in their vehicle to Chico and to appellant's residence and business location. Surveillance was established. Howell arrived about 6:10 a.m. He and appellant unloaded the liquid fertilizer into tanks located there.

On August 21st Jordan and Jose again followed Howell and again set up surveillance at appellant's residence in Chico. Howell did not arrive. Jordan heard the phone ring in appellant's residence and then saw appellant leave. Jordan went to Paradise, but observed only Howell leaving in the Peterbilt truck.

Ray Jones, another member of the law enforcement team, followed Howell on August 17th and 21st. On the 21st, while following, Jones observed Howell stop the truck and make a phone call. He followed the truck to Paradise but did not see it unloaded nor did he observe appellant.

Hal Dumas, Katy Police Department, and another officer followed Howell on August 21st to the business location of Preston Lowery in Paradise. Dumas observed appellant arrive at the location and help unload the truck. Later he saw appellant produce a big roll of bills and give some to Howell saying, "Here is a grand." Howell stated he would be back that night with another load.

Preston Lowery was in the liquid fertilizer and pipe business in Paradise. He did business with appellant from time to time. During the summer of 1978, he depleted his stock of 10-34-0 liquid fertilizer and called the appellant, who sold him a small amount. Appellant told Lowery he did most of his business in South Texas, but at times had trucks coming home empty and could sell Lowery fertilizer at a lower freight rate. Lowery told appellant if he had a truck "coming in in the next little while, bring me some." Later Lowery noticed fertilizer in his tanks. When he spoke to appellant about it, appellant informed him that two loads had been delivered. Lowery found this to be true and paid the appellant in two installments.

Howell did not testify.

Leon Bates, Jr., testified for the defense that he had known appellant approximately seven years, that he had owned Equalizer Fertilizer located in Galena Park, that he often sold fertilizer to appellant and that appellant did hauling work for him. Bates sold his business but not his inventory. On August 12, 1978, he sold 95 tons of 10-34-0 liquid fertilizer to appellant for $12,000.00. He did not personally know when the fertilizer was "picked up" from the storage tanks in Galena Park because he lived in Longview at the time.

Appellant testified he was in the liquid fertilizer and feed business and in August, 1978, only Howell worked for him. He had a contract agreement to haul for Equalizer Company, but also hauled for other companies. He related that on August 12, 1978, he purchased liquid fertilizer from Bates. He told Bates he could not pick up the fertilizer right away and would have to sell it before he could pay for it. He also agreed to sell two loads of fertilizer to Lowery about August 14th or 15th. He instructed Howell to bring a load home when he was not otherwise busy hauling for other companies. There were three loads to be delivered from Bates. Two loads were sold to Lowery for which he was paid. One load was delivered to appellant's tanks on August 17, 1978. Appellant stated he handed Howell a pill bottle full of brass connections for a transmission air hose on August 21st at Lowery's place. Howell had called and informed him the truck was having air hose trouble. This, he testified, was what the officers probably saw him hand Howell. He denied the conversation with Howell attributed to him by Officer Dumas or handing Howell money.

Appellant denied any knowledge the liquid fertilizer came from Phillips 66, or that he participated in the thefts.

Appellant, as shown above, was indicted for the actual theft of the property pursuant to V.T.C.A., Penal Code, § 31.03(a) and (b)(1), and not for receiving stolen property pursuant to V.T.C.A., Penal Code, § 31.03(a) and (b)(2). While the court charged abstractly on the law of parties, in applying the law to the facts the court submitted the case to the jury as if he were acting alone, despite appellant's timely objection.

Appellant did not participate with Howell in the actual appropriation of the alleged property. Clearly the evidence is insufficient to show that appellant acting alone had committed the theft of the liquid fertilizer as alleged in the second count of the indictment. The question remains whether appellant was a party to the crime. If appellant was guilty, it is as a party under V.T.C.A., Penal Code, § 7.02(a)(2). Wygal v. State, 555 S.W.2d 465, 468 (Tex.Cr.App.1977).

Said § 7.02(a)(2) provides:

"(a) A person is criminally responsible for an offense committed by the conduct of another if:

"(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or ...."

In determining whether an individual is a party to an offense and bears criminal responsibility therefor, the court may look to events, during and after the commission of the offense. Wygal v. State supra; Ex parte Prior, 540 S.W.2d 723, 727 (Tex.Cr.App.1976); Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975); Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974).

Participation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence....

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