Lehman v. State

Decision Date20 June 1990
Docket NumberNo. 383-87,383-87
Citation792 S.W.2d 82
PartiesRodney Dean LEHMAN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Clinard J. Hanby, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Cathleen C. Herasimuchuk, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.


WHITE, Judge.

Appellant, a former police officer with the Houston Police Department, brought appeal from a conviction for theft of property valued at more than $750.00 but less than $20,000.00. See V.T.C.A., Penal Code § 31.03, especially 31.03(e)(4)(A). Under the authority of V.T.C.A., Penal Code § 31.09, the State alleged that appellant perpetrated six incidents of theft pursuant to one scheme or continuing course of conduct and that the aggregate amount stolen was within the range mentioned above, making appellant's alleged conduct a third degree felony. A jury found appellant guilty as charged in the indictment and sentenced him to two years' confinement in the State penitentiary. The First Court of Appeals in Houston subsequently affirmed appellant's conviction in a published opinion, holding the evidence sufficient to support findings that the appellant committed four of the six thefts alleged in the indictment (appellant has never challenged the sufficiency of the evidence to support findings that the other two thefts were committed). Lehman v. State, 727 S.W.2d 656 (Tex.App.--Houston [1st Dist.] 1987).

We granted two grounds for review from appellant's Petition for Discretionary Review. Appellant's first claim concerns an alleged error in the jury charge. Appellant claims that the trial court erred when it authorized the jury to convict if it believed appellant had committed some, but not all, of the acts of theft alleged in the indictment. The charge authorized conviction as long as the jury believed beyond a reasonable doubt that appellant had committed "one or more" of the thefts

pursuant to one scheme and continuing course of conduct, so long as the value of money stolen, if any were, was more than Seven Hundred Fifty Dollars and less than Twenty Thousand Dollars.

The Court of Appeals relied on Wiley v. State, 632 S.W.2d 746 (Tex.Cr.App.1982) (panel opinion) to hold that the charge was not in error. Appellant claims that Wiley misconstrued a long line of contrary precedent which it failed to distinguish. See, e.g. Thompson v. State, 43 Tex. 268 (1875); Anderson v. State, 166 Tex.Crim. 337, 314 S.W.2d 603 (1958); Pitcock v. State, 367 S.W.2d 864 (Tex.Cr.App.1963); Pena v. State, 422 S.W.2d 937 (Tex.Cr.App.1967). We granted review to resolve the apparent discrepancy between these cases and the Wiley opinion. We also granted a second ground for review, since the Court of Appeals incorrectly determined that the statutorily mandated parole law charge, Art. 37.07, § 4, V.A.C.C.P., was constitutional. This holding is contrary to our subsequent Rose v. State, decision, 752 S.W.2d 529 (Tex.Cr.App.1988) (opinion on rehearing). (The Court of Appeals did not have the benefit of Rose at the time this case was decided). After performing a Rose harmless error analysis pursuant to the Court's recent dictates in Arnold v. State, 786 S.W.2d 295 (Tex.Cr.App.1990), we will affirm the judgment of the Court of Appeals.

Appellant argues that Thompson and its progeny stand for the proposition that a defendant should not be convicted for an offense with which he has not been charged. According to this line of reasoning, if a defendant is charged with stealing "widgets A, B, and C", he must be convicted of stealing "widgets A, B, and C", and not for the "different" offense of stealing widgets A and B. On the other hand, the State argues that the offense charged in theft cases is theft of property valued within a certain range, with the seriousness of the offense corresponding to the statutory range into which the property's value falls. Admitting that the property must be generally described in the indictment and that conforming evidence must be adduced, the State nevertheless maintains that it need not show that the accused stole every piece of property described in the indictment in order to secure a valid conviction. Rather, it must prove theft of property described in the indictment in an amount sufficient to satisfy the jurisdictional requirement of its pleading. According to this theory, if a defendant is charged with stealing "A, B, and C, widgets of an aggregate value greater than $750.00 but less than $20,000.00", the State need only prove that defendant stole widgets worth between $750.00 and $20,000.00 from among widgets A, B, and C.

We believe the State's theory is built upon the stronger foundation. The purpose of an indictment is "to give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment"; an indictment must also be specific enough to "enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." Arts. 21.11, 21.04, V.A.C.C.P. For these reasons, a theft conviction can never rest in whole or in part upon theft of property not alleged in the indictment as stolen. Wilson v. State, 536 S.W.2d 375, 377 (Tex.Cr.App.1976). However, once the defendant has been given proper notice that he must prepare to defend himself against a charge that he has stolen a certain "bundle" of property, there is no reason that he should be acquitted if the evidence shows him guilty of stealing enough of the "bundle" to make him guilty of the offense charged. 1 The State is allowed to anticipate variances in the proof by pleading alternative "manner and means" in the conjunctive when proof of any one "manner or means" will support a guilty verdict. See Zanghetti v. State, 618 S.W.2d 383 (Tex.Cr.App.1981) (panel opinion); Aguirre v. State, 732 S.W.2d 320, 326 (Tex.Cr.App.1982) (opinion on rehearing). Likewise, the State should be allowed to plead all property which the evidence may ultimately prove stolen without thereby being required to prove theft of any larger quantum of property than the statute at issue requires. 2

Twentieth Century case law from around the United States has generally supported this position. E.g. State v. Hullum, 664 S.W.2d 314 (Tenn.Crim.App.1983) (indictment charged defendant with theft of a beer and a sum of money, which together was alleged to carry an aggregate value under $200.00; the proof showed that defendant had in fact paid for the beer. The variance was not material because it was not of such a character as would mislead the defendant at trial or otherwise prejudice him); Owens v. State, 255 Ind. 693, 266 N.E.2d 612 (1971) (indictment alleged theft of several items of clothing, but evidence that one of them was stolen was sufficient to support the judgment); McIntosh v. State, 476 P.2d 92 (Okla.Crim.App.1970) (the information alleged theft of five pairs of shoes; proof showing three pairs stolen did not give rise to a fatal variance since defendant was not misled by the information, nor would it later expose him to double jeopardy based on the same offense); State v. Hibberd, 123 Or. 490, 262 P. 950 (1928) (allegation that five sets of harnesses with a collective value of $100 were stolen; instruction allowing conviction if less than five were stolen was not error since it still required the jury to find all elements of the offense charged); State v. Daniels, 5 Or.App. 86, 482 P.2d 756 (1971); Sizemore v. State, 5 Md.App. 507, 248 A.2d 417 (1968); State v. Bige, 198 Iowa 573, 198 N.W. 510 (1924). Cases which always require the State to prove the theft of each item alleged stolen in a charging instrument are predominantly from the nineteenth century. E.g. McCarty v. State, 1 Wash. 377, 25 P. 299 (1890); State v. Brew, 4 Wash. 95, 29 P. 762 (1892); Reeder v. State, 86 Ark. 341, 111 S.W. 272 (1908). See generally 52A C.J.S. Larceny, § 98 (1968).

The court's instruction in this case also comports with a great deal of Texas law. The instruction recognizes the Legislature's intent to treat an aggregated theft under § 31.09 as one offense, an intent which is latent in the statute itself but expressly declared by this Court when we disallowed severance of a § 31.09 theft into its constituent larcenies. Wages v. State, 573 S.W.2d 804 (Tex.Cr.App.1978) (panel opinion). Several cases from the First Court of Appeals (besides the lower court opinion in Lehman ) apply the one offense policy in an identical context to this case, holding that the State need not prove each constituent theft of an aggregated theft allegation pursuant to § 31.09, V.T.C.A., Penal Code as long as it demonstrates that enough of the property from the indictment was stolen to satisfy the aggregate value allegation. Cooper v. State, 707 S.W.2d 686, 689 (Tex.App.--Houston [1st Dist.] 1986, pet.ref'd); Johnson v. State, 734 S.W.2d 199, 206 (Tex.App.--Houston [1st Dist.] 1987, pet.ref'd). Another Court of Appeals came to a similar holding, but stressed that it was authorizing the charge on the ground that it required the jury to find that the defendant had committed at least two of the constituent thefts before authorizing conviction under § 31.09. Cashion v. State, 657 S.W.2d 517, 520 (Tex.App.--Corpus Christi 1983, pet.ref'd).

Other cases demonstrate similar principles in analogous situations. When, for example, the State alleged that four cattle of a particular description were stolen and the proof showed that one such animal had been taken, this Court held the evidence sufficient to support the conviction since theft of the one animal constituted the same offense as theft of all four would have. Cook v. State, 488 S.W.2d 822 (Tex.Cr.App.1972). Similarly, several cases have held that when the State alleges an exact value for stolen property, it need not...

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