Maxwell v. State

• Decision Date: 17 December 1980
• Docket Number: No. 62445,No. 2,62445,2
• Citation: 628 S.W.2d 773
• Parties: Wilbur Austin MAXWELL, III, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 773

628 S.W.2d 773

Wilbur Austin MAXWELL, III, Appellant, v. The STATE of Texas, Appellee.

No. 62445.

Court of Criminal Appeals of Texas, Panel No. 2.

Dec. 17, 1980.

On Rehearing Oct. 21, 1981.

State's Motion for Rehearing Denied March 17, 1982.

C. C. Divine, Marian S. Rosen, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Alvin M. Titus and Lewis Dickson, III, Asst. Dist. Atty's., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for theft over $200. Punishment is imprisonment for five years.

Appellant challenges the sufficiency of the evidence to sustain his conviction and raises numerous other grounds of error. We find that the evidence is insufficient, and reverse the cause. We do not discuss the other grounds of error.

The indictment alleged that appellant:

... appropriate(d) property, namely, one ring, owned by Allen Buvinghausen, hereafter styled the Complainant, of the value of over two hundred dollars and under ten thousand dollars, with the intent to deprive the Complainant of the property, and without the effective consent of the Complainant.

The alleged conduct constitutes the offense of theft under V.T.C.A. Penal Code, § 31.03(a) and (b)(1).

At the time of the commission of the offense appellant and Buvinghausen worked at Pasadena Auto Parts Company in Pasadena. On several occasions appellant complained to Buvinghausen of being unable to support his family on the wages he was making at the company. Buvinghausen suggested that appellant's wife work for him as a housekeeper. An agreement was reached, and appellant's wife, Gemey Maxwell, accompanied appellant to work the next morning. Buvinghausen took Mrs. Maxwell to his house, showed her what to do, and then returned to work. When Buvinghausen went home that evening he discovered that a diamond ring which he had hidden in a dresser drawer was missing.

When appellant came to work two days later, Buvinghausen asked him whether he knew anything about the missing ring. Appellant replied that he knew nothing about the ring. An hour later he left work, then returned with a ring which he presented to Buvinghausen, stating "here's your ring." Buvinghausen saw that it was not his ring, and called the police. Appellant was apprehended.

Subsequently Buvinghausen was called to the Longhorn Pawn Shop in Pasadena. He was shown a diamond ring which he identified as the one taken from his dresser. According to I. G. Garrison, owner of the pawn shop, appellant pawned the ring for $30 on the date of the offense.

The state introduced appellant's written confession in evidence. It reads in pertinent part:

... Last Thursday or Friday, a guy that I work with named Allen, asked me if my wife would be interested in a job cleaning up his house. I think that his wife is divorcing him. Then on this past Tuesday, November the 15th, my wife did go to his house at 1302 Pecan and clean his house up. I brought her to work with me that day and Allen took her over to his house. Then sometime that day, about noon, I went to Allen's house to pick Gemey up. I went to the back sliding glass door and knocked and went in. I stayed there about a half hour. I need to change the statement I just made about going in the back door, I really went in the front.

After we left Pecan Street, we were driving down the street and my wife showed me a gold ladies ring with 11 diamonds in it. She asked me to find out how much it was worth. I asked her where she got it but she didn't say and I didn't ask. I drove to the Longhorn Pawn Shop and we both went in and a guy waited on us, and offered thirty dollars for it. I pawned the ring and got the money and left.

V.T.C.A. Penal Code, § 31.03 provides in pertinent part:

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

(b) Appropriation of property is unlawful if:

(1) it is without the owner's effective consent; or

(2) the property is stolen and the actor appropriates the property knowing it was stolen by another.

Although in enacting the present penal code the Legislature consolidated the former theft-related offenses into one general offense of theft, see V.T.C.A. Penal Code, § 31.02, it saw fit to continue the distinction between ordinary theft and receiving stolen property by providing two separate and distinct ways that an appropriation of property can be unlawful. § 31.03(b)(1) and (b)(2), supra.

The theory of theft set forth in § 31.03(a) and (b)(1) requires that the actor participate, either personally or by acting as a party, in the initial unlawful appropriation of the property. If the actor does not participate in the initial unlawful appropriation, but simply exercises control over the previously stolen property knowing that the property was stolen by another, he is guilty of theft only under the theory set forth in § 31.03(a) and (b)(2). Compare the former offense of receiving stolen property, provided in Art. 1430, V.A.P.C. (1925).

In the present case the state prosecuted appellant for the offense of theft as set forth in § 31.03(a) and (b)(1). Contrary to the state's theory of the case, however, appellant's confession affirmatively showed that he did not participate in the theft of the ring from Buvinghausen's residence. According to appellant's confession his first knowledge of the theft of the ring came when his wife showed him the ring, after they left Buvinghausen's residence. By this time the theft of the ring from the residence was complete. See Barnes v. State, 513 S.W.2d 850 (Tex.Crim.App.1974); Baker v. State, 511 S.W.2d 272 (Tex.Crim.App.1974). Appellant only helped sell the ring.

Because the state introduced the confession in evidence, it was bound by the exculpatory portion of the confession. See Richards v. State, 511 S.W.2d 5 (Tex.Crim.App.1974); Medina v. State, 296 S.W.2d 273 (Tex.Crim.App.1956); Otts v. State, 116 S.W.2d 1084 (Tex.Crim.App.1938).

Appellant possibly was guilty of theft under § 31.03(a) and (b)(2), or hindering apprehension or prosecution under V.T.C.A. Penal Code, § 38.05. He was not guilty of theft under § 31.03(a) and (b)(1) because he had no knowledge of the initial unlawful appropriation of the ring until after the appropriation had been accomplished. We refuse to hold that a person who does not participate in the initial theft but who only helps dispose of the stolen goods is guilty as a party to the offense of theft under § 31.03(a) and (b)(1). To do so would effectively render the offense of theft under § 31.03(a) and (b)(2) a nullity. Compare Clark v. State, 237 S.W. 260 (Tex.Crim.App.1922); Jones v. State, 122 S.W. 31 (Tex.Crim.App.1909). ¹

Even assuming the state were not bound by the exculpatory portion of the confession, the conviction cannot stand. Clearly there is insufficient evidence to show that appellant, acting alone, stole the ring from Buvinghausen's residence. To hold the evidence sufficient on this basis would be to wholly ignore the reasonable hypothesis that appellant's wife stole the ring.

Moreover, the evidence is insufficient to show that appellant was a party to the theft of the ring from Buvinghausen's residence. Appellant did not take his wife to Buvinghausen's residence on the date of the offense. Although appellant picked his wife up at Buvinghausen's residence, there is no evidence to indicate that appellant conspired with his wife prior to the theft, or encouraged or aided her in any way in committing the theft. ² Mere presence at the scene does not make one a party to the offense. Ex parte Prior, 540 S.W.2d 723 (Tex.Crim.App.1976); Johnson v. State, 537 S.W.2d 16 (Tex.Crim.App.1976).

In the absence of a showing of appellant's participation in the theft of the ring from the residence, or the existence of a common design and purpose on the part of appellant and his wife to commit the theft, we conclude that the evidence is insufficient to sustain the conviction. Wygal v. State, 555 S.W.2d 465 (Tex.Crim.App.1977); see Suff v. State, 531 S.W.2d 814, 817 (Tex.Crim.App.1976).

The dissent urges that there is sufficient evidence to show that appellant knew his wife stole the ring. There is no dispute that at the time appellant sold the ring he knew it was stolen. Moreover, appellant's attempt to give Buvinghausen a substitute ring indicates that appellant knew the ring had been stolen. These acts do not show, however, that appellant participated in the theft of the ring from the house. Appellant's first exposure to the ring may have been when his wife showed it to him in the car, after they left the house, and after she had stolen it acting entirely on her own.

The dissent goes on to charge that we overlook "the several different ways that theft can be committed ... Trying to conceal the ring after learning that it was stolen was sufficient proof to support the conviction." This is incorrect. Section 31.03(b)(1) and (b)(2) set forth two separate and distinct theories of the offense of theft. A conviction under one theory cannot rest on an indictment alleging the other theory. See Ex parte Cannon, 546 S.W.2d 266 (Tex.Crim.App.1976, Opinion on State's Motion for Rehearing); Reynolds v. State, 547 S.W.2d 590 (Tex.Crim.App.1977, Opinion on State's Motion for Rehearing). Appellant was charged with theft under § 31.03(b)(1), supra. The state proved an offense under § 31.03(b)(2).

Under either theory of theft the property at some point is taken without the owner's effective consent. The dissent would allow the state to allege (b)(1) theft, i.e. that the defendant appropriated the property without the effective consent of the owner, and then prove (b)(2) theft, i.e. that the property was stolen by someone other than the defendant, and the defendant subsequently appropriated it knowing it was stolen. As was pointed out earlier, this would render theft under §...