Gonzalez v. State

• Decision Date: 13 May 1970
• Docket Number: No. 42659,42659
• Parties: Oscar GONZALEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 53

456 S.W.2d 53

Oscar GONZALEZ, Appellant, v. The STATE of Texas, Appellee.

No. 42659.

Court of Criminal Appeals of Texas.

May 13, 1970.

J. H. Fugate, Jr., Kingsville, for appellant.

F. B. Lloyd, Jr., Dist. Atty., Alice, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

This is an appeal from an order revoking probation. The sole question to be decided by this court in such cases is whether the trial judge abused his discretion in revoking probation previously granted.

On November 30, 1965, appellant entered a plea of guilty to an indictment charging him with violation of Art. 1436b Vernon's Ann.P.C. enacted by the 47th Legislature (Acts 1941, Ch. 490, p. 788), approved and effective June 13, 1941. ¹

The portion of said Act under which appellant was convicted on November 30, 1965, and for violation of which on the night of March 4, 1969, his probation was revoked, reads:

'Section 1. Any person who shall enter upon any premises or gas pipe-line right of ways with intent to steal or carry away without the consent of the owner, or with intent to aid or assist in stealing or so carrying away any mercury from and out of any gas meter or any device by or through which the flow, movement, or pressure of gas is measured or regulated, or which is capable of being used to measure, regulate or control the movement of gas, shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary for not less than one (1) year nor more than five (5) years, or by confinement in the county jail for not less than ninety (90) days nor more than two hundred (200) days, or shall be fined not less than One Hundred Dollars ($100) nor more than Five Hundred Dollars ($500), or by both such fine and imprisonment.

"Gas' as that term is used herein means natural gas or artificial gas or a combination or mixture of any such gases.

'Sec. 2. It is the finding and declaration that the public health, safety, and welfare require that title to any mercury should be transferred by a written bill of sale.

"Mercury' as that term is used herein means the common mineral know by that term not in combination with any other liquid, fluid, or mineral.

'Sec. 4. This Act shall be cumulative of all laws of the State and any violation hereof may be prosecuted, irrespective of whether or not the acts complained of may constitute some of the essential elements of other or different offenses against the penal laws of this State; and for the purposes of this Act the word 'steal' shall mean to take wrongfully and without just claim of authority and mercury, and the word 'steal' need not be defined in any indictment for the prosecution of any offense hereunder.

'Sec. 5. If any section, paragraph, sentence, clause, or word of the Act is held to be unconstitutional, the remaining portions of the same nevertheless shall be valid and the Legislature declares that the Act would have been enacted without such unconstitutional portion.'

Though the question was not raised, the constitutionality of this portion of Art. 1436b, supra, was upheld by this court without discussion, over a vigorous and well reasoned dissent, in Sellers v. State, 163 Tex.Cr.R. 560, 294 S.W.2d 813. ²

The condition of probation which was alleged to have been violated was that appellant 'commit no offense against the laws of this State or any other State of the United States of America.'

Appellant's contention that the court abused its discretion, because the state's application alleging violation of the condition of probation that he commit no offense against the laws did not allege a violation of law or any other legal ground to revoke his probation, is overruled.

Though the allegations of the motion to revoke probation did not strictly comply with the requirements of an indictment or follow the wording of Section 1 of Art. 1436b, supra, such allegations were sufficient to give notice to the probationer of the offense against the laws of this state which would be relied upon to show that the terms of his probation had been violated.

The remaining contention is that the court abused his discretion in revoking probation because there is neither direct nor circumstantial evidence to sustain the material allegations contained in the state's application to revoke probation. Specifically it is contended (1) that there is no evidence that Mobil Corporation is in fact an incorporated company; (2) no evidence from which it could be inferred that appellant actually entered upon the premises; (3) the evidence does not necessarily show that the mercury tested came from the Brooks County meters; (4) no evidence to the effect that the defendant did not have permission or consent to enter upon the premises; and (5) a reasonable hypothesis of the case is that an employee removed the mercury from the meters.

Viewed from the standpoint most favorable to the court's finding, the evidence reflects the following:

Some 98 pounds of mercury, with a trace element of gold, such as Mobil Oil Corporation had used in its meters since 1964, was drained from 14 meters on the premises of said corporation in Brooks County on the night of March 4, 1969.

Ten of these meters were test meters used once a month by the lease operator to test his wells. The other four were used to indicate the pressure of flow of gas in pipe lines. From the charts it was shown that the mercury was drawn from two of the four meters about 11 P.M. and from the other two about midnight.

A jug of mercury, a sample of which was later found to be mercury with a trace of gold used by Mobil Oil Corporation since 1964 in its meters, was found the next morning by appellant's kinsman Leopoldo De La Garza, a junkman, at his place of business if Premont.

De La Garza testified that no one brought it to him; he had not seen it before, and did not know how it got there. He further testified:

'Q. What did you do with that jug of mercury?

'A. I Divided that in three parts and took it to the junk yard, * * *' in Corpus Christi. He asked the man if he would buy it and he said yes; 'I gave it to him for whatever he could pay for it.'

The man said the mercury weighed 80 pounds and gave him $200.00 for it.

On March 6, 1969, De La Garza brought the jug of mercury, a sample of which was later identified as mercury with a trace of gold such as used by Mobil Oil Corporation in its meters, to Industrial Salvage Company in Corpus Christi and offered to sell it. Blackie Segovia, an employee, weighed the jug of mercury and found it to be 80 pounds and paid De La Garza $2.50 per pound, a total of $200.00 for it.

Either the same day or the next day Segovia turned over the jug of mercury he had purchased from De La Garza to Tom Goates. A sample of such mercury was delivered by Goates to Jess Sweeten, Investigator for Mobil, who delivered it to Donald E. McAlpin, Chief Spectrographer for Southern Spectrographic Laboratory in Dallas, who checked it for gold content and determined that it contained sixty parts gold per million and would be Mobil Oil Corporation mercury.

Appellant's connection with the mercury removed from the meters arose upon the further testimony of the witness De La Garza:

'Q. Now, did you, after you got the money for the mercury, did you go back to Premont?

'A. Yes, sir.

'Q. All right. Did you later on have the occasion to see Oscar Gonzalez?

'A. Yes, sir.

'Q. And that's this same man sitting right here, is that correct?

'A. Yes, sir.

'Q. Are you related to Oscar Gonzalez?

'A. Yes, sir.

'Q. Now, did you have a conversation with Oscar Gonzalez about any mercury?

'A. Not before, no sir.

'Q. Well, after you got back from Corpus Christi.

'A. Yes, sir, I gave him $90. He said they belonged to him.

'Q. All right. Did Oscar Gonzales ask you anything about the mercury?

'A. Just the amount the jug weighed, the weight of the jug.

'Q. Did he tell you that it was his mercury?

'A. That's what he said. I don't know.

'Q. He said it was his mercury, is that right, and wanted to know how much it weighed?

'A. Yes, sir.

'Q. All right. Did he ask you for any money?

'A. Before?

'Q. No, after this, when you were talking about mercury.

'A. Yes. I told him that was what was left, $90, and I gave them to him.

'Q. You paid him the $90, is that right?

'A. Yes, sir, I gave him the money.

'Q. Did you have any other conversation with Oscar Gonzalez about the mercury?

'A. I didn't see him after that.'

As to appellant's contention that the court abused his discretion in revoking his probation because there was no evidence that he did not have permission or consent To enter upon the premises, attention is directed to the fact that consent to enter the premises is not necessarily an element of the offense and the statute is violated if the person enter upon the premises with intent to steal Or carry away without the consent of the owner Or with intent to aid or assist in stealing Or so carrying away any mercury from and out of any gas meters,--'steal' as used in the act meaning 'to take wrongfully and without jury claim of authority any mercury * * *.' (Sec. 4)

The state relied upon circumstantial evidence. Neither the hypothesis that the mercury containing a trace of gold was not Mobil mercury, nor that the mercury which appellant claimed came from premises other than the premises of Mobil Oil Corporation in Brooks County from which almost a hundred pounds of such mercury was removed the night before it was divided into three parts and 80 pounds sold in Corpus Christi, impresses us as a reasonable hypothesis which was not excluded.

Bearing in mind that a proceeding to revoke probation is not a criminal trial ³; the statute requiring that the testimony of an accomplice be corroborated does not apply and the uncorroborated testimony of an accomplice may be sufficient to revoke probation ⁴; the court may accept a part of the testimony of a witness and reject other portions of his testimony;...