Hardeman v. State

• Decision Date: 25 May 1977
• Docket Number: No. 52945,52945
• Citation: 552 S.W.2d 433
• Parties: J. B. HARDEMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 433

552 S.W.2d 433

J. B. HARDEMAN, Appellant, v. The STATE of Texas, Appellee.

No. 52945.

Court of Criminal Appeals of Texas.

May 25, 1977.

Rehearing Denied July 6, 1977.

Melvyn Carson Bruder, James P. Neill, Jr., Dallas, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr. and Fred Davis, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of concealing stolen property; the prosecution was under the former Penal Code, Article 1430, V.A.P.C. (1925); the punishment is imprisonment for 2 years.

The appellant asserts that: (1) the evidence is insufficient to sustain the conviction; (2) the indictment was unlawfully amended; (3) the evidence is insufficient to show that the grand jury used reasonable diligence to determine from whom the appellant received the stolen property; (4) evidence of extraneous offenses was erroneously admitted; (5) the prosecutor was permitted to argue matters not supported by evidence; (6) the court erroneously overruled the amended motion for new trial after it erroneously found that the State need not reveal the name of an informer and erroneously found that the State had not suppressed evidence which would have been favorable to him; and (7) the trial court erred by not following the provisions of Article 36.27, V.A.C.C.P., when it communicated with the jury. Both the appellant and the State have submitted briefs of superior quality.

It was alleged that the appellant, on or about September 25, 1971, knowing that it was stolen, received and concealed a traxacavator of the value of $30,000. It was also alleged that the traxacavator was the property of M. L. Gregory and the appellant received it from a person whose name was to the grand jury unknown.

We will first discuss the appellant's assertion that there is insufficient evidence to sustain the conviction. On March 9, 1972, on ranch property belonging to the appellant, several law enforcement officers found three pieces of large machinery, a 977K traxacavator, which is the piece of machinery described in the indictment, a D8 bulldozer, which was stolen in September, 1971, from William Neal, Jr., and a 977L traxacavator, which was stolen in September, 1971, from Jim Alexander. Also, a bulldozer, which was stolen in September, 1971, from Noble Construction Company, was found at the appellant's place of business in Justin.

The traxacavator belonging to M. L. Gregory was stolen on the weekend of September 25-26, 1971; according to the appellant's testimony, the traxacavator appeared on his ranch near Justin the last part of September, 1971. The Gregory traxacavator and the other stolen traxacavator were found in a grove of pecan trees approximately two hundred yards from a country road. The pecan grove was in a pasture, and the pasture was bordered with a fence in which there was a locked gate. The D8 bulldozer was found behind a barn on the appellant's ranch.

The appellant came to the scene just after the officers saw the machinery in the pasture; he told one of the officers: "Well, I knew the damned stuff was stolen because they brought it here in the middle of the night." Identification plates and serial numbers had been removed from the machinery, fictitious numbers had been applied, the decals of the owners had been removed, and the machinery had been repainted. Although it is controverted, there is evidence that the traxacavator described in the indictment had been used to work on an earth dam on the appellant's ranch.

The appellant testified that he had purchased the small bulldozer from one Bill Myers, and a bill of sale for that bulldozer was offered by the appellant and admitted in evidence. The appellant testified, apparently to explain the presence of the machinery on his land, that he had agreed to permit Myers to hold an auction sale of heavy machinery in the pasture.

The appellant's statement, that he knew the property was stolen because it was brought to his property in the middle of the night, is evidence that the appellant knew the machinery was stolen. That the property was not fully hidden from view does not mean it was not concealed. Stolen property may be concealed by changing it so that its owners would not likely recognize it. Pieratt v. State, 141 Tex.Cr.R. 45, 146 S.W.2d 997 (1941). The word "conceal" is not to be given the literal meaning of hiding, but in contemplation of the statute, property may be concealed by handling the property in a manner that would throw the owner off guard in his search for it. Trammell v. State, 511 S.W.2d 951 (Tex.Cr.App.1974); Beaty v. State, 172 Tex.Cr.R. 343, 356 S.W.2d 802 (1962); Barker v. State, 109 Tex.Cr.R. 67, 2 S.W.2d 851 (1927); Cuilla v. State, 80 Tex.Cr.R. 41, 187 S.W. 210 (1916). There is evidence from which it may be inferred that the traxacavator was used on the appellant's property for his benefit, and there was an attempt to conceal the property by repainting and changing identifying serial numbers. The appellant admitted he knew the machinery had been on his property for almost six months before it was discovered there by law enforcement officers. The evidence is sufficient to sustain the jury's verdict finding the appellant guilty of concealing property knowing that it was stolen.

The appellant also asserts that the trial court erred by permitting the prosecution to proceed to trial on an unlawfully amended indictment. This objection is raised for the first time on appeal; no objection on this ground was made at the time of trial. The appellant argues that the date in the indictment on which it was alleged the offense was committed was changed from either 1972 or 1973 to 1971. It is said that a handwritten note, its author not being revealed by the record, was attached to the indictment with a paper clip; although it was not introduced in evidence, the trial court ordered that the note be included in the record. Even if we are authorized to consider this note, we find no support for the appellant's contention that the indictment was amended after it was returned by the grand jury on January 22, 1974. The written note states that the file was examined 3/16/74, presumably by the judge in whose court the indictment was returned and filed; the note reads: "Date appears to be 1971 with the one written in ink." Since there is no evidence to show whether the date, if it was changed, was changed before or after the indictment was returned, there is a presumption of regularity. It must then be presumed that the date was changed before the grand jury returned the indictment and that the indictment was not unlawfully amended. See Maier v. State, 90 Tex.Cr.R. 459, 235 S.W. 576 (1921).

The appellant urges the evidence is insufficient to show that the grand jury used reasonable diligence to determine from whom he received the stolen property. A premise upon which the appellant's contention rests is that, even though his conviction was for concealing stolen property, the conviction depends on the unlawful receipt of the stolen property. He relies on and cites Thurman v. State, 37 Tex.Cr.R. 646, 40 S.W. 795 (1897). In that case the Court said:

"The receiving and concealing are two distinct offenses; that is, a person may be guilty of receiving the stolen property, though he made no concealment thereof. It would be difficult, however, for him to conceal the stolen property without having received the same."

If this language can be construed to mean that a defendant may not be guilty of concealing property unless he is also guilty of receiving the stolen property, the statement is wrong. There is much authority supporting the proposition that although a defendant is not guilty of unlawfully receiving property, knowing it was stolen, he may be guilty of unlawfully concealing the property, after learning it was stolen. See Trammell v. State, supra; McBride v. State, 490 S.W.2d 560 (Tex.Cr.App.1973); Brown v. State, 152 Tex.Cr.R. 39, 211 S.W.2d 234 (1948); Rodriguez v. State, 134 Tex.Cr.R. 317, 115 S.W.2d 905 (1938); McLeroy v. State, 131 Tex.Cr.R. 118, 97 S.W.2d 184 (1936); Ryan v. State, 128 Tex.Cr.R. 482, 82 S.W.2d 668 (1935); Salcido v. State, 126 Tex.Cr.R. 281, 70 S.W.2d 706 (1934); Rutherford v, State, 85 Tex.Cr.R. 7, 209 S.W. 745 (1919); Falcone v. State, 84 Tex.Cr.R. 279, 206 S.W. 845 (1918); Kahanek v. State, 83 Tex.Cr.R. 19, 201 S.W. 994 (1918); Cuilla v. State, supra.

Since this conviction is for concealing stolen property and not for receiving stolen property, the State, to sustain the conviction, did not have to prove from whom the property was received. It follows that to sustain the conviction for concealing stolen property it was unnecessary to prove that the grand jury used reasonable diligence to ascertain from whom the appellant received the property.

The appellant complains of the admission of evidence of an extraneous offense since there was no evidence to connect him with the commission of that offense. Evidence was admitted to show that a truck and trailer were stolen during the night of September 25-26, 1971. There is strong circumstantial evidence that this truck and trailer were used to transport stolen machinery from the place where it was stolen to the appellant's property. it is necessary in a prosecution for receiving and concealing stolen property to prove the theft of the property. Carpenter v. State, 156 Tex.Cr.R. 461, 243 S.W.2d 834 (1952); Poon v. State, 120 Tex.Cr.R. 522, 48 S.W.2d 307 (1932). This uncharged offense was admissible to prove the theft of the machinery and was admissible even though it was a collateral criminal offense and even though there was no evidence to show that the appellant, who was charged with receiving and concealing stolen property, was guilty of the theft of the truck and trailer. In these circumstances, Fentis v. State, 528 S.W.2d...