Levi v. State
| Decision Date | 21 June 1978 |
| Docket Number | No. 2,No. 54668,54668,2 |
| Parties | Henry Davis LEVI, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Lynwood Sanders, Orange, for appellant.
Jim Sharon Bearden, County Atty. and L. Jim Wallace, Asst. County Atty., Orange, and Jim D. Vollers, State's Atty., Austin, for the State.
Before ONION, P. J., and DALLY and VOLLERS, JJ.
This is an appeal from a conviction for the offense of theft of property of the value of more than $200 but less than $10,000. The punishment is imprisonment for four years, probated.
The appellant asserts that the trial court erroneously refused to submit to the jury a charge on the law of circumstantial evidence. We agree and reverse.
The appellant made a timely objection to the court's charge because it did not include a charge on circumstantial evidence. He also timely submitted to the court a specially requested charge on the law of circumstantial evidence which the court refused to submit to the jury.
When the proof of theft is supported only by the unexplained possession of property recently stolen, a defendant is entitled to a charge on the law of circumstantial evidence, if it is timely requested or if there is a timely objection that the court's charge does not include instructions on the law of circumstantial evidence. E. g., Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1974); Barber v. State, 127 Tex.Cr.R. 532, 78 S.W.2d 183 (1935); Brown v. State, 126 Tex.Cr.R. 449, 72 S.W.2d 269 (1934); Russell v. State, 108 Tex.Cr.R. 308, 300 S.W. 74 (1927); Taylor v. State, 27 Tex.App. 463, 11 S.W. 462 (1889); Lehman v. State, 18 Tex.App. 174 (1885). In this case there is proof that the appellant and two other persons were in possession of property recently stolen which they sold. These are circumstances from which the theft of property may be inferred, but there is no direct evidence of the taking of the property.
The judgment is reversed and the cause is remanded.
Before the court en banc.
STATE'S MOTION FOR REHEARING
A majority overrules the State's motion for rehearing without written opinion. It should be granted, and the conviction should be affirmed.
Appellant was convicted of theft of property valued at more than $200 but less than $10,000, V.T.C.A. Penal Code, Sec. 31.03. Punishment was assessed at four years probation. On original submission we held that failure of the trial court to charge the jury on circumstantial evidence was reversible error because proof of the theft was supported only by unexplained possession of recently stolen property. The State's Motion for Rehearing is now before us and I am of the opinion that the motion should be granted.
The State urges that the expansion of the concept of theft under the "new" penal code requires a re-evaluation of existing authority in light of the changes. Our task, therefore, is to discover the changes, then to determine the impact of the changes.
Article 1410, Vernon's Ann.P.C. limited theft to situations involving a physical taking of property. Under this provision, the accused had to physically take property in order to be convicted of theft. Further, if the State relied on unexplained possession of recently stolen property, a charge on circumstantial evidence was required because the jury had to infer that such possession resulted from a taking.
Provisions of the "new" code attempt to consolidate theft related offenses such as shoplifting and receiving stolen property under the general heading of theft. Appellant was prosecuted under V.T.C.A. Penal Code, Sec. 31.03(b)(1), which reads as follows: 1
Under this provision, an actual taking is not required; rather, the theft is realized by an exercise of control without the owner's consent. 2 If the State relies on unexplained possession of stolen property in a Sec. 31.03(b)(1) prosecution, the jury must still infer that the possession arises from an exercise of control without consent. Such an inference under the "new" code would still require a circumstantial evidence charge, unless the elements of the offense are otherwise established and the circumstances are merely corroborative. Asner v. State, 138 Tex.Cr.R. 420, 136 S.W.2d 822 (1939); Wilson v. State, 115 Tex.Cr.R. 308, 28 S.W.2d 804 (1930). 3
A theft under V.T.C.A. Penal Code, Sec. 31.03(b)(1) has four basic elements: (1) value; (2) exercise control of property; (3) without effective consent of the owner; and (4) intent to deprive the owner. If these four elements are established by other than circumstantial evidence, then a charge on circumstantial evidence is unnecessary. Asner, supra; Wilson, supra.
The value of the property (a television set) was established at $250 by a State's witness. An exercise of control and an intent to deprive are shown by the sale of the television and acceptance of money by appellant. The remaining and most...
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Bishop v. State
...circumstantialevidence, if timely requested or if there is a timely objection to the court's jury instructions." Levi v. State, 573 S.W.2d 784, 784-85 (Tex. Crim. App. 1978). However, the court of criminal appeals later abolished this requirement, holding that such a charge was improper bec......
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Britton v. State
...jury on circumstantial evidence where, as here, the case is based upon inference and reasoning. Frazier v. State, supra; Levi v. State, 573 S.W.2d 784 (Tex.Cr.App.1978); Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1974). The failure of the trial court to so instruct the jury was, therefo......
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Acy v. State, 60805
...but is merely a circumstance to be considered with other evidence in determining guilt. 55 Tex.Jur.2d, Theft, § 213. In Levi v. State, 573 S.W.2d 784 (Tex.Cr.App.1978), it was held that when proof of theft is supported only by the unexplained possession of property recently stolen, a defend......