Mack v. State, No. 43695

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtONION
Citation465 S.W.2d 941
PartiesThaddeus MACK, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 43695
Decision Date20 April 1971

Page 941

465 S.W.2d 941
Thaddeus MACK, Appellant,
v.
The STATE of Texas, Appellee.
No. 43695.
Court of Criminal Appeals of Texas.
April 20, 1971.

Thomas N. Thurlow, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Gene Miles, Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for theft from person with the punishment being assessed by the jury at 2 years' confinement in the Texas Department of Corrections.

The sole question presented on appeal is the sufficiency of the evidence to support the conviction, it being appellant's contention that the theft of the purse was from a grocery shopping cart and not from the person of the complaining witness.

Eugene Edwards, an off-duty Houston Police Officer, was working as a security officer at the Weingarten's Store at 4100 Almeda in the city of Houston on Sunday, October 26, 1969. In the store that afternoon he overheard the appellant Mack tell Charles Selma Lewis, 'I will go up on this side of her, and you walk around to the other side and get it.' He then observed the appellant Mack engage Mrs. Swan, the complaining witness, in a conversation, and saw Lewis jerk the purse and run up the aisle while Mrs. Swan screamed. The store's exits were blocked. First, the appellant and then Lewis were arrested, but a search of the store failed to result in a recovery of the purse.

Mrs. Anna Lee Swan testified that while she was shopping on the date in question in Weingarten's the appellant approached her, inquired about olives and that suddenly she noticed her purse was gone and she screamed. As to the position of the purse in relation to her person the record reflects the following on cross-examination:

'Q. Where was your purse, Mrs. Swan?

'A. It was on my cart.

'Q. On your shopping basket?

'A. It was on a metal shopping cart.

'Q. It wasn't around your arm?

'A. No, I had my hand on the cart.

'Q. It was in your basket; it wasn't on your person?

'A. Well, I wasn't carrying it, no sir.

'A. Well, no, because I had it when I turned the corner, and I watched it; when I hang it on my cart I always watch it, but this time I turned my back to look at something, and that is when it happened.'

Upon presentation of a motion for an instructed verdict, the court stated: 'I will overrule that. I think probably with

Page 942

her hand on the cart and the purse in the cart, that would be on her person and...

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11 practice notes
  • People v. Smith, No. 02CA1515.
    • United States
    • Colorado Supreme Court of Colorado
    • 11 October 2005
    ...a shopping cart while the victim was unaware, but had a hand on the cart; defendant convicted of theft from the person); Mack v. State, 465 S.W.2d 941 (Tex.Crim.App.1971) (conviction of theft from person upheld where defendant took purse from Page 248 shopping cart which victim was pushing)......
  • People v. Shields, E039693 (Cal. App. 5/18/2007), E039693
    • United States
    • California Court of Appeals
    • 18 May 2007
    ...The special instruction was based on In re George B. (1991) 228 Cal.App.3d 1088 (George B.) and Mack v. State (Tex.Cr.App. 1971) 465 S.W.2d 941 (Mack).) In both George B. and Mack, the courts found that property was taken from the person of another because, at the time of the takings, both ......
  • Farrell v. State, No. 05-91-00649
    • United States
    • Court of Appeals of Texas
    • 31 July 1992
    ...of the person or from his grasp or immediate possession. Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App.1986); see, e.g., Mack v. State, 465 S.W.2d 941, 942 (Tex.Crim.App.1971); Alfred v. State, 659 S.W.2d 97, 98 (Tex.App.--Houston [14th Dist.] 1983, no pet.) (theft of purse from shopping ......
  • State v. Blow
    • United States
    • New Jersey Superior Court – Appellate Division
    • 27 February 1975
    ...den. 387 U.S. 921, 87 S.Ct. 2038, 18 L.Ed.2d 977 (1967); State v. Kobylasz, 242 Iowa 1161, 47 N.W.2d 167 (Sup.Ct.1951); Mack v. State, 465 S.W.2d 941 (Texas Cr.App.1971). Cf. State v. Danziger, 121 N.J.Super. 44, 296 A.2d 69 (App.Div.1972), in which defendants' convictions under N.J.S.A. 2A......
  • Request a trial to view additional results
11 cases
  • People v. Smith, No. 02CA1515.
    • United States
    • Colorado Supreme Court of Colorado
    • 11 October 2005
    ...a shopping cart while the victim was unaware, but had a hand on the cart; defendant convicted of theft from the person); Mack v. State, 465 S.W.2d 941 (Tex.Crim.App.1971) (conviction of theft from person upheld where defendant took purse from Page 248 shopping cart which victim was pushing)......
  • People v. Shields, E039693 (Cal. App. 5/18/2007), E039693
    • United States
    • California Court of Appeals
    • 18 May 2007
    ...The special instruction was based on In re George B. (1991) 228 Cal.App.3d 1088 (George B.) and Mack v. State (Tex.Cr.App. 1971) 465 S.W.2d 941 (Mack).) In both George B. and Mack, the courts found that property was taken from the person of another because, at the time of the takings, both ......
  • Farrell v. State, No. 05-91-00649
    • United States
    • Court of Appeals of Texas
    • 31 July 1992
    ...of the person or from his grasp or immediate possession. Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App.1986); see, e.g., Mack v. State, 465 S.W.2d 941, 942 (Tex.Crim.App.1971); Alfred v. State, 659 S.W.2d 97, 98 (Tex.App.--Houston [14th Dist.] 1983, no pet.) (theft of purse from shopping ......
  • State v. Blow
    • United States
    • New Jersey Superior Court – Appellate Division
    • 27 February 1975
    ...den. 387 U.S. 921, 87 S.Ct. 2038, 18 L.Ed.2d 977 (1967); State v. Kobylasz, 242 Iowa 1161, 47 N.W.2d 167 (Sup.Ct.1951); Mack v. State, 465 S.W.2d 941 (Texas Cr.App.1971). Cf. State v. Danziger, 121 N.J.Super. 44, 296 A.2d 69 (App.Div.1972), in which defendants' convictions under N.J.S.A. 2A......
  • Request a trial to view additional results

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