Mack v. State, 43695

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

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

Testifying in his own behalf appellant related he had gone to the store with Lewis, his cousin, to whom he had loaned $30.00 to buy groceries; that after separating inside the store he encountered a man whom he knew by sight but not by name who stated to him, 'Hey, man, I can beat this broad if you block for me,' and that he replied, without looking 'at the lady,' 'Well, no man, that is not my game.' Appellant then testified he subsequently encountered Mrs. Swan and inquired about the difference between certain type of olives, that she became very talkative, and then suddenly screamed her purse was gone. He related that ...

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12 cases
  • People v. Smith, No. 02CA1515.
    • United States
    • Colorado Supreme Court
    • October 11, 2005
    ...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 shopping cart which victim was pushing); cf. State......
  • People v. Shields, E039693 (Cal. App. 5/18/2007)
    • United States
    • California Court of Appeals Court of Appeals
    • May 18, 2007
    ...from the person." 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 ......
  • Farrell v. State
    • United States
    • Texas Court of Appeals
    • July 31, 1992
    ...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 cart wa......
  • State v. Jones
    • United States
    • Missouri Court of Appeals
    • August 28, 1973
    ...(1923)People v. McElroy, 116 Cal. 583, 48 P. 718 (1897)Nevada: Terral v. State, 84 Nev. 412, 442 P.2d 465 (1968)Texas: Mack v. State, 465 S.W.2d 941 (Tex.Cr.App.1971)Cousins v. State, 154 Tex.Cr.R. 5, 224 S.W.2d 260 (1949)Gibson v. State, 100 S.W. 776 (Tex.Cr.App.1907)Utah: State v. Lucero,......
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