Jackson v. State, 43493

• Decision Date: 10 March 1971
• Docket Number: No. 43493,43493
• Parties: Harold JACKSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 153

464 S.W.2d 153

Harold JACKSON, Appellant, v. The STATE of Texas, Appellee.

No. 43493.

Court of Criminal Appeals of Texas.

March 10, 1971.

Walter D. Snider, Hurst, Court appointed, for appellant.

Frank Coffey, Dist. Atty., George McManus, Truman Power and R. W. Crampton, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

The record reflects that on January 17, 1967, the appellant waived trial by jury and entered a plea of guilty before the court to an indictment charging burglary. His punishment was assessed at 6 years. However, the imposition of sentence was suspended and the appellant was placed on probation subject to certain conditions and terms among which are found the requirements that he

'(a) Commit no offense against the laws of this State or any other State or the United States;

'(b) * * *

'(c) Avoid persons and places of disreputable or harmful character. * * *'

On October 27, 1969, the State filed its first motion to revoke probation. This was followed by two subsequent motions filed on February 9 and February 20, 1970, respectively. On March 3, 1970, a fourth motion to revoke probation was filed by the State. This motion entitled a 'second amended petition' alleged that on or about September 30, 1969, the appellant had 'unlawfully received from a person or persons unknown, and did fraudulently conceal certain property, to wit: five men's suits,' the property of Thomas Barnett, which was over the value of $50.00. Such motion also alleged that on or about September 30, 1969, the appellant 'was in the company' of one Clyde McKnight, a person of disreputable and harmful character, in violation of probationary condition (c) set out above.

It was upon this fourth motion to revoke probation that a hearing was conducted on March 23, 1970. Following such hearing the court revoked probation and sentence was imposed.

The order revoking probation recites in part:

'The defendant has committed another offense against the laws of the State, to wit: Receiving and Concealing Stolen Property of the Value of $50.00 or Over. And, the defendant has been in the company of a person of disreputable and harmful character, On September 30th, 1969, in Tarrant County, Texas. The offense of Receiving and Concealing Stolen Property of the Value of $50.00 or Over occurred on September 30th, 1969, in Tarrant County, Texas.' (emphasis supplied)

The appellant contends the trial court abused its discretion since the evidence is insufficient to support the order of revocation.

The evidence reflects that on the night of September 30, 1969, the Neiman-Marcus store of Ft. Worth was burglarized and approximately 100 to 150 men's suits were taken without the consent of Thomas Barnett, the Vice-President who had the care, custody and control of the 'house' in question and the property therein. Each suit was shown to have a value of $75.00 or more. There were no eye witnesses and no one knew just when during the night the offense occurred.

Acting on an informer's tip Ft. Worth police 'staked out' a location in west Ft. Worth in the early evening hours of October 2, 1969. There they observed one Clyde McKnight, known to one of the officers as a person of disreputable and harmful character. He was in or near an automobile. Shortly thereafter two automobiles, a tan Ford and a maroon Pontiac stopped near McKnight's location. After a brief conversation the tan Ford drove away, and the appellant emerged from the Pontiac and raised its hood. The officers then approached McKnight and the appellant and as they did they observed a large number of men's suits in the back seat of the Pontiac partially covered with a newspaper. The appellant was arrested and a search of the trunk at the police station also revealed more men's suits. All of the suits bore Neiman-Marcus price tags. The suits recovered were identified as those taken from the Neiman-Marcus store in Ft. Worth. The Pontiac automobile was shown to belong to the appellant's brother.

Appellant urges that the burden of proof in a hearing to revoke probation is upon the State to prove the allegations of its motion (Zane v. State, Tex.Cr.App., 420 S.W.2d 953; Campbell v. State, Tex.Cr.App., 456 S.W.2d 918, 922), and that proof offered does not show that appellant unlawfully received and concealed stolen property as alleged.

Appellant recognizes the rule that where a burglary or theft is committed by someone the unexplained possession of recently stolen property taken in the burglary or theft by the accused is sufficient to warrant an inference or presumption of guilt and to sustain a conviction for burglary or theft. He contends, however, that the rule has no application to the offense of receiving and concealing stolen property.

Article 1430, Vernon's Ann.P.C., provides:

'Whoever shall receive or conceal property which has been acquired by another in such manner as that the acquisition comes within the meaning of the term theft, knowing the same to have been so acquired, shall be punished in the same manner as if he had stolen the property.'

In 49 Tex.Jur.2d, Receiving Stolen Goods, Sec. 2, p. 255, is written:

'Theft is not the same offense as receiving or concealing stolen property.

The constituents of the two crimes are as essentially different as are those of theft and embezzlement. In theft, there is a fraudulent taking of the property of another, without his consent and with intent to deprive him of the value thereof, and to appropriate it to the use and the benefit of the person so taking. The offense of receiving stolen property consists in receiving property which has been already taken from the owner in such manner as to constitute theft, knowing it to have been so acquired. A theft must be perfected before the crime of receiving stolen property can be perpetrated, and the receiver must be a...