McClain v. State

• Decision Date: 03 April 1985
• Docket Number: 700-84,Nos. 699-84,s. 699-84
• Citation: 687 S.W.2d 350
• Parties: Craig Houston McCLAIN, Appellant, v. The STATE of Texas, Appellee. Charles Vincent NAVARRO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 350

687 S.W.2d 350

Craig Houston McCLAIN, Appellant, v. The STATE of Texas, Appellee.

Charles Vincent NAVARRO, Appellant, v. The STATE of Texas, Appellee.

Nos. 699-84, 700-84.

Court of Criminal Appeals of Texas,

En Banc.

April 3, 1985.

Robert A. Shults, Houston, for appellant.

John B. Holmes, Jr., D.A. & J. Harvey Hudson & Veryl Brown, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

OPINION ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

These are appeals from convictions for the offense of theft ¹ in which the punishment for each appellant was assessed at three years and a $500.00 fine, probated.

In an unpublished opinion the Houston (1st) Court of Appeals found the evidence insufficient and ordered each appellant acquitted. We will review the basis in law for its finding.

The salient stipulated facts established Houston Police Officer S.R. Jett received information from Kevin Stuart, a Harris County Jail inmate, regarding appellants and their business operation, Gulf Coast Coins. Pursuant to this information, Jett checked out of the police department property room some personalty, including ten gold chains.

Pursuant to Jett's instructions, Stuart took the property to appellants' place of business, gave it to defendant Navarro and "had a discussion with him about selling the property to the codefendants at Gulf Coast Coins." Stuart told Navarro that he had personally stolen the property. Stuart later spoke to defendant McClain, whom he told, "I risked my butt stealing this stuff and should get a better price." McClain gave Stuart $140.00. Stuart left the property with appellants.

The State alleged by indictment that each appellant did:

"... on or about April 5, 1983, ... unlawfully appropriate by acquiring and otherwise exercising control over property namely, ten gold chains, owned by S.R. Jett, 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.

* * * "

Addressing appellants' contentions that the evidence was insufficient to support the trial court's findings of guilt, the court of appeals observed:

"... [T]heft under Sec. 31.03(b)(1) requires 'that the accused participate, either personally or acting as a party, in the initial unlawful appropriation of the property from its owner.' Casey v. State, 633 S.W.2d 885 (Tex.Crim.App.1982). In Casey, the Court instructed:

'If the accused does not take part in the initial unlawful appropriation but he does later acquire or exercise control over the previously stolen property knowing that it was stolen by another he is guilty only of theft under Sec. 31.03(b)(2). Such an interpretation of these sections is required by common sense and logic; any other interpretation of Sec. 31.03(b)(1) would allow conviction for non-criminal conduct.'

633 S.W.2d at 887.

The stipulated evidence in the instant case establishes that the appellants had no participation in the 'initial unlawful appropriation' (if there was one) of this property; indeed, the stipulations explicitly state that the 'original owner of the ten gold chains and the exact facts regarding the original acquisition or appropriation of these ten gold chains is unknown to any witness in this [sic] cases.' "

We granted the State's petition for discretionary review in order to address the contention that the reasoning underlying Casey is unsound and should be overruled. ²

The court of appeals has undoubtedly applied Casey correctly to the instant cases. We now turn to the question presented: whether Casey was correctly decided.

The panel opinion in Casey construed our present theft statute to proscribe only "two distinct" types of conduct--what would have essentially constituted "theft" and "receiving and concealing" under old Articles 1410 ³ and 1430 ⁴ Vernon's Ann.P.C. (1925), respectively--focusing primarily on the manner in which the actor acquired the property. Pursuant to that construction, Casey held that § 31.03(a) with (b)(1) ⁵

"requires [in addition to the express elements of the offense,] that the accused participate, either personally or acting as a party in the initial unlawful [actual taking] ⁶ of the property from its owner. See Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976)."

Casey, supra, at 887.

Having reviewed the stated rationale of Casey, we conclude its addition of an element in some cases--"participation in the initial acquisition"--to the constituents of theft as proscribed by the Legislature in § 31.03(a), is untenable.

The error of Casey is most graphically demonstrated in cases where the circumstances of the appellant's acquisition of the property are unknown and unprovable. E.g., Mulchahey v. State, 574 S.W.2d 112 (Tex.Cr.App.1978). What was shown in Mulchahey, supra, was an exercise of control over several vehicles by the defendant, coupled with knowledge he did not have the respective owners' consent and his intent to deprive the owners of the vehicles--just what the theft statute prohibits. V.T.C.A. Penal Code, § 31.03(a). ⁷ Mulchahey's claim on appeal--that the State proved neither that he initially took the vehicles nor that he knew they were stolen when he acquired them--was rejected on the basis that the proscribing statute does not require such proof. Clearly, the evidence established Mulchahey committed a theft as contemplated by § 31.03(a).

The error of Casey is precipitated by its focus on the "manner of acquisition" of personal property, a focus the Legislature removed entirely from the theft statute in the 1974 penal code, ⁸ then further refined in the 1975 legislative session. ⁹ Just as it has been in the past recognized that the actor's intent to "benefit himself or another" or to "withhold the property permanently" are not essential to commission of a theft, so too has it now been acknowledged that the "manner of acquisition" is inconsequential to the evil of a theft: the gravamen of theft is in depriving the true owner of the use, benefit, enjoyment or value of his property, without his consent.

Thus, the varying misleading emphases on aspects of acquisitive conduct proscribed under former penal codes were sifted out by the new, and a single offense was distilled from the common elements contained in each: clearly, if one exercises control over property knowing it is without the owner's consent, and intending to deprive the owner of it, it matters not "how" the actor got the property, whether he intended to benefit himself or another, intended "permanently" to deprive the owner, etc. ¹⁰

One of the single biggest problems faced by prosecutors under the old theft statutes was in proving "receiving and concealing" cases because the proof turned on whether the accused had knowledge of a circumstance surrounding his "receipt" of the property--that being that the property was stolen. Since this scienter is one not inferable from the act of "receipt" of the property alone, there was often no way to convict "fences" or other persons dealing in stolen goods, even if the proof clearly established a knowing nonconsensual possession of the property to the exclusion of the true owner with the intent to deprive the owner of the property.

Thus, there were at least two eventual innovations in the new code designed specifically to assist in prosecuting such persons: (1) the "exercise of control" feature of "appropriation" which dispensed with the necessity of a "receipt" of property and, perforce, knowledge it was stolen at that very moment; ¹¹ and (2) in the event the prosecution could prove the actor had participated in numerous similar receipts of property which, in fact, was stolen, § 31.03(c)(1) allowed proof of those transactions to show knowledge of stolen status of the property. See also V.T.C.A. Penal Code, 31.03(c)(2)-(4).

"Few property transactions do not involve the acquisition of another's property with intent to deprive him of it," Committee Comment to § 31.03. Thus, the committee (and later the Legislature) recognized that what separates lawful acquisitive conduct from theft is knowledge of a crucial "circumstance surrounding the conduct" ¹²--that the acquisition is "without the owner's consent." The crime of theft requires the "forbidden conduct" element of the offense ¹³ ("exercise of control over property") to be accompanied by this "circumstance surrounding the conduct," and V.T.C.A. Penal Code, § 6.03(b), requires proof of the actor's knowledge of that "circumstance surrounding the conduct:" that the conduct is "without the owner's consent." With this crucial feature, the actor's acquisitive conduct is clearly "unlawful." See Lugo-Lugo v. State, 650 S.W.2d 72 (Tex.Cr.App.1983) (Opinion concurring on state's motion for rehearing). ¹⁴

It is logically apparent that one way to prove the actor had "knowledge" that his exercise of control over property was "without the owner's consent" is to prove that at some point during his exercise of control he "knew it was stolen by another." ¹⁵ Thus, knowing the property possessed "was stolen by another" is merely a subset of knowing the possession is "without the owner's consent." Casey, however, treated these "circumstances surrounding the conduct" as mutually exclusive. ¹⁶

Not only is such a treatment patently illogical in fact, but it also conflicts with the express legislative history of the statute:

"Section 31.03(b)(2) provides that it is 'unlawful' to ... exercise control over property the owner [sic] knows is stolen; thus the receiver is guilty of theft under Section 31.03. 'Receiving' is included out of an abundance of caution rather than out of necessity, because one who obtains or exercises control over property he knows is stolen does so [knowing it is] without the owner's effective consent as clearly as when he physically steals the property himself."

Committee...