Jesko v. State, 43024

Decision Date04 November 1970
Docket NumberNo. 43024,43024
Citation458 S.W.2d 927
PartiesAnthony JESKO, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Collard & Elliott by W. Doyle Elliott, Friona, for appellant.

Jack Young, Dist. Atty., Muleshoe, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S MOTION TO REINSTATE

DOUGLAS, Judge.

The conviction is for theft of property over the value of fifty dollars; the punishment, four years, probated.

The order dismissing the appeal is withdrawn.

The evidence shows that on or about the 8th day of November, 1968, a 1958 Ford truck loaded with approximately 21,000 pounds of milo maize was stolen from Marion Carson. Carson harvested the maize on the 7th day of November, and left the loaded truck in the field. During the night a light snow fell, and the truck was not moved. It was last seen in the field by a neighbor shortly after sunrise on the morning of the 8th. Early the following morning Carson's son went to the field and discovered that the truck was missing.

Carson testified that he went to the field, and because of the damp ground caused by the snowfall, he was able to follow the truck tracks down the road for several miles onto a farm leased by appellant. He testified that he did not see the truck, but he was able to identify the grain found in a barn as the grain stolen from him. He found no one at the farm.

The State's testimony shows that the truck tracks on appellant's farm were covered by other truck or equipment tracks. Some of the witnesses expressed opinions that there had been an attempt to obliterate the truck tracks at appellant's farm.

The stolen truck was found some two or three weeks later on a road in another part of the county.

No one resided at appellant's farm, and he lived some twenty-five or thirty miles away in Clovis, New Mexico.

Several witnesses testified in support of the defense of alibi and accounted for appellant's whereabouts from sunrise on the morning of November 8th until noon on the 9th. Testimony for the defense showed that appellant had one hand in a cast, because of a broken bone, apparently to show that he could not have unloaded the grain in the barn.

The record reflects that appellant and two other men had cattle and horses on the three hundred twenty acre farm where the grain was found.

The case was submitted to the jury on a charge of circumstantial evidence. Appellant contends that the evidence is insufficient. The State relies on the rule that proof of unexplained possession of recently stolen property is sufficient to support the conviction.

For a conviction based upon recent unexplained possession of stolen property, there must be a showing that possession was recent, unexplained and personal, evincing a conscious assertion of...

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4 cases
  • Bullard v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 3, 1976
    ...be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.' See Jesko v. State, 458 S.W.2d 927 (Tex.Cr.App., 1970); Smith v. State, 518 S.W.2d 823 (Tex.Cr.App., 1975). See Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d......
  • Wilson v. State
    • United States
    • Texas Court of Appeals
    • April 19, 1984
    ...briefcase. At most, the State has shown that the appellant picked up the complainant's briefcase without her consent. In Jesko v. State, 458 S.W.2d 927 (Tex.Cr.App.1970), the court, quoting 5 Branch's Ann. P.C.2d, sec. 2650 To warrant an inference or presumption of guilt from the circumstan......
  • Crain v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 26, 1975
    ...assertion of property by the defendant." The later cases are in accord with this rule laid down in Branch. See, e.g., Jesko v. State, 458 S.W.2d 927, 928 (Tex.Cr.App.1970); Thomas v. State, 462 S.W.2d 294, 296 (Tex.Cr.App.1971); Hayes v. State, 464 S.W.2d 832, 833 (Tex.Cr.App.1971); Huff v.......
  • Hayes v. State
    • United States
    • Texas Court of Criminal Appeals
    • February 3, 1971
    ...and conscious assertion of property by the appellant. Thomas v. State, 462 S.W.2d 294 (delivered January 27, 1971); Jesko v. State, Tex.Cr.App., 458 S.W.2d 927; McKnight v. State, Tex.Cr.App., 399 S.W.2d 552. This Court has held that where stolen property is found on premises to which sever......

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