McClure v. State, 62125

• Decision Date: 14 July 1982
• Docket Number: No. 2,No. 62125,62125,2
• Citation: 648 S.W.2d 667
• Parties: Marvin McCLURE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 667

648 S.W.2d 667

Marvin McCLURE, Appellant, v. The STATE of Texas, Appellee.

No. 62125.

Court of Criminal Appeals of Texas Panel No. 2.

July 14, 1982.

On Rehearing En Banc March 9, 1983.

Rehearing Denied April 13, 1983.

Art Brender, Fort Worth (Court-appointed), for appellant.

Tim Curry, Dist. Atty., William Kane, Travis Young and Bill Lane, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before DALLY, W.C. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This case became a cause celebre in the Dallas-Fort Worth area long before it reached this Court--a notoriety of which we were unaware during oral argument on original submission, ¹ but which is now revealed in matters dehors the record that are rife with improprieties. ² Our decision, however, is based upon the review circumscribed by ARTICLE 40.09, § 13, V.A.C.C.P³ and no more; see cases annotated in notes 704, 705.

The appeal is from a conviction for the offense of theft over two hundred dollars, a jury having found appellant guilty, and punishment assessed at confinement for life, pursuant to V.T.C.A. Penal Code, § 12.42(d), the trial court having found that two enhancement paragraphs were true. ⁴ Such punishment has been held to be neither cruel or unusual in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

The theft at issue is alleged to have been committed "on or about the 11th day of August 1977," and the proof presented by the State to support the allegation shows two orders placed with appellant on August 11 and 15, 1977. Omitting its formal parts and enhancement paragraphs, the indictment avers that appellant did:

"... knowingly and intentionally appropriate property, other than real property ... from the owner ... without the effective consent of the owner and with intent to deprive the owner of the property."

In its charge to the jury the trial court abstractly instructed, inter alia;

"Our law provides that a person commits the offense of theft if he unlawfully appropriates property with intent to deprive ⁵ the owner of property. Appropriation of property is unlawful if it is without the owner's effective consent." ⁶

and in applying the law to facts the charge substantially tracks the language of the indictment. Appellant expressly had no objection to the charge. The verdict of the jury finds appellant guilty "as charged in the Indictment."

The indictment, the charge of the court and the verdict that relates back to the indictment are derived from the following portions of V.T.C.A. Penal Code, § 31.03:

"(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; ..."

As applicable here, § 31.01(5) provides:

"(5) 'Appropriate' means:

(A) * * *

(B) to acquire or otherwise exercise control over property other than real property."

And § 31.01(6) provides:

"(6) 'Property' means:

(A) * * *

(B) * * *

(C) a document, including money, that represents or embodies anything of value."

According to § 31.01(2), there are five manners of perpetrating "deception." While the indictment did not allege one or another means of deception, we take it from, e.g., Hughes v. State, 561 S.W.2d 8 (Tex.Cr.App.1978), that it need not, and any defect of notice in that respect must be raised by timely motion or exception, Trevino v. State, 519 S.W.2d 864, 866 (Tex.Cr.App.1975) and Hughes v. State, supra. Similarly, it is necessary to charge the jury on all essential elements of the offense alleged, Bradley v. State, 560 S.W.2d 650, 652 (Tex.Cr.App.1978), but if the accused desires and is entitled to findings beyond those elements he must object and except to their omission or request a special charge incorporating them, Articles 36.14 and 36.15, V.A.C.C.P., to call the trial court's attention to them, e.g., Crawford v. State, 148 Tex.Cr.R. 634, 190 S.W.2d 359, 361 (1945) and see Martinez v. State, 576 S.W.2d 854, 855 (Tex.Cr.App.1979) and Hanner v. State, 572 S.W.2d 702, 707 (Tex.Cr.App.1978).

As already indicated, appellant voiced no objection to the charge. Thus, we are without a specific allegation or a particularized finding of the manner of deception thought to have perpetrated on the complaining party by appellant.

Moreover, as we read the briefs of the competing parties they seem to mix indiscriminately concepts of specific intent to deprive of property and of consent induced by deception which renders appropriation of property unlawful under § 31.03(a) and (b)(1), respectively, so that we are not appreciably aided in discerning the precise legal theory on which this case was tried. The challenge appellant makes to sufficiency of the evidence to prove the element of specific intent to deprive of property and to show any ingredient of deception to induce consent does give us much pause, but there are in the record unassigned errors that must be considered in the interest of justice. For this we first sketch a background from evidence that, unlike inferences to be drawn, is not sharply disputed.

The publisher of the "Federal Round-up," a monthly inhouse publication for federal employees in and around the Fort Worth area, first met appellant in February 1977. He placed and paid for an advertisement in the name of American International Ombudsman and Associates (American International). It was one of several enterprises in whose name appellant was then doing business. ⁷ American International sold at discount prices a variety of merchandise from calculators to coffee. Thereafter ads were run and paid for monthly. Mrs. Black, the publisher, purchased different items from time to time, and she professed to know hundreds of other persons to whom he sold and delivered goods. Beginning in 1976, one who dealt with appellant is Otis Hatfield, the complaining party. He had purchased a calculator and "it worked."

In July or August 1977 appellant advertised guns for sale, as well as his regular line of products. Hatfield saw the ad and responded by telephone, ordering coffee and a shooters' bible, evidently an annually published trade journal of weapons manufacturers, which appellant delivered in person. They fell into a conversation about buying guns shown in the shooters' bible; since the State says that Hatfield was induced by deception to part with his purchase money for guns, Hatfield's version of the critical portions of that conversation are reproduced verbatim:

"A. Well, I asked him if I could buy guns out of this shooters' bible and he told me he could get the guns for dealer's cost plus the--I had to pay the cost and the associated fees, state tax, federal tax, I believe, and what have you.

I asked Mr. McClure if he had a federal firearms license number and he said he did not but that his company did which was--

Q. What is the name of his company?

A. I believe he said he was American International Associates, Inc.

Q. Did he say who he dealt with in order to obtain the guns?

A. Yes, he said that he would be dealing with various manufacturers representatives or at least a jobber with the factory themselves.

Q. So, he indicated to you that he did deal directly with the factory or manufacturers?

A. He could, yes."

Hatfield did not order a firearm that day, but he took the shooters' bible home to "shop more or less;" though he liked to read the "bible" he had not yet read the 1977 edition.

In early August Hatfield called appellant and told of his interest in purchasing a specified Smith & Wesson .22 caliber target pistol, and appellant quoted him a price. August 11, 1977 at Hatfield's office appellant presented an invoice for the pistol and received Hatfield's personal check in the amount of $168.50, telling him delivery would probably be in about three weeks. They also discussed what Hatfield, himself a gun aficionado, already knew: that the price of guns was going up and if, one is successful in selecting them, guns are a good investment. ⁸ Later, musing over this proposition, Hatfield decided to purchase still more weapons; he contacted appellant, ordered four Smith & Wesson revolvers, a Marlin bolt action rifle and a Galef 12 gauge shotgun, and on August 15, 1977 received invoices for them and delivered to appellant a personal check in the amount of $749.05--the total orders thus aggregating $917.55. The retail price for the lot was $1,085.20, according to copies of invoices left with Hatfield.

In about three weeks, having not received the weapons, Hatfield contacted appellant by phone to find out "if there had been any progress made in getting the guns or ... what the status was on the order." Appellant reported:

"That he had not been able to get the guns yet.... [He] said that he had tried out with--he was trying to meet with Jess Stockstill out of Grapevine and they wouldn't--he didn't buy from Jess Stockstill because they wanted to sell him a case of ammunition with each of the guns he wanted to purchase from them." ⁹

Appellant also mentioned that the domestic delivery schedule of Smith & Wesson guns was running late because a minimum amount of them were available to the American public since the OPEC nations were buying a bunch of them--to Hatfield it was "a fairly standard rumor-type thing." ¹⁰ As well as Stockstill, appellant said he had tried some other source, but Hatfield did not recall if appellant named the second source.

In our record is a copy of a completed order form describing each weapon invoiced to Hatfield and bearing the purported signature of appellant. The date does not appear because it is obvious that the copy paper and the original form were not aligned, resulting in the top of the form being lopped off. The order is addressed to:

"Metro Gun Distributors Assn.

New York, N.Y."

and refers to "attached invoices," presumably a copy of each one left...