Melton v. State
| Decision Date | 02 July 1986 |
| Docket Number | Nos. 65165,65166,s. 65165 |
| Citation | 713 S.W.2d 107 |
| Parties | Jerry Wayne MELTON, Appellant, v. The STATE of Texas, Appellee. Jimmie Lee SLOAN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Both appellants were indicted for the offense of theft over $200.00. At a joint trial during which the appellants were represented by separate counsel, they were found guilty and both were assessed punishments of five years.
The appellants, represented by the same counsel on appeal, have each filed a brief. A review of these briefs show them to be identical to one another with the exception of an additional ground of error present in appellant Sloan's case. The State has not seen fit to file any briefs. The state of the appellants' briefs leaves much to be desired. Because the two briefs are identical to one another except in the one respect we have pointed out, we find that many contentions that are made do not apply to both appellants. Moreover many of the grounds of error are multifarious; they do not cite to any authority and contain no argument. Nevertheless, we have reviewed the contentions as best as we can determine what they are and have found reversible error in each case.
Department of Public Safety Investigator Jimmy Jacobs testified that on or about October 11, 1978, he received information from an individual named Bo Lemmons that an individual was selling stolen heavy equipment. Lemmons was an ex-convict whom Jacobs had had under surveillance because Jacobs suspected that Lemmons was himself involved in some type of illegal activities. As a result of this information, on the evening of October 11, Jacobs, working in an undercover capacity, telephoned appellant Melton and told him that he had heard that Melton had a D-8 bulldozer for sale. Melton replied that he not only had a D-8 bulldozer but also had a John Deere front-end loader which he wished to sell. The two men agreed on a price of $6500 for the D-8 Caterpillar bulldozer and $2,000 for the John Deere front-end loader. Melton indicated to Jacobs that he had the two pieces of equipment and was prepared to deliver them. A deal was struck whereby Melton agreed to deliver the John Deere front-end loader to the Winfield Truck Stop on Saturday, October 14, where Jacobs was to meet him. On Saturday, October 14, Jacobs waited for Melton at the Winfield Truck Stop but Melton never appeared. After waiting for three hours, Jacobs attempted to call Melton. Melton's wife answered the phone and said that Melton was not home. On October 15, Jacobs called Melton again. Melton told Jacobs he had not been able to deliver the equipment to the truck stop because his driver had been arrested for cattle theft and was in jail. Melton apologized and said that the next time the delivery would be completed.
On October 24, Jacobs called Melton again. When Jacobs asked what equipment Melton had, Melton replied that he had a White Freightliner truck and lowboy trailer with a 977 Caterpillar loader on it. Jacobs testified that he interpreted this to mean that Melton already had this equipment in his possession. Melton said he would sell all three pieces of equipment for $10,000. Jacobs asked Melton to check the mileage on the truck and to see what kind of bucket was on the loader. An agreement was reached whereby Melton agreed to deliver the load to the Bonanza Steak House in Sulphur Springs on October 26. It was also agreed that Jacobs would call back the next day so that the plan could be finalized. On October 25, Jacobs called Melton back. Melton told Jacobs he could not check the truck's mileage but that the loader had a two or three yard bucket on it. He also told Jacobs that even though the equipment was worth at least $20,000, because it was "hot", he would sell it for $10,000. It was agreed that the delivery was to be made at 2:00 a.m. on October 27. The equipment was to be brought out on Interstate 30 and parked on the shoulder of the freeway directly in front of the Bonanza Steak House. Jacobs was to be parked between the service road and the freeway. It was also agreed that Jacobs would call Melton again on October 26.
On October 26, Jacobs called Melton's home and talked to Melton's wife. He left a phone number where he could be reached. At 9:00 that evening Melton called Jacobs and said he had the equipment and he could meet Jacobs sooner than planned but instead of the 977 Caterpillar loader, he was bringing a W-8 International front-end loader. Melton told Jacobs he would deliver the 977 loader the next weekend. The two agreed to meet at about 1:30 a.m. and to lower the price from $10,000 to $9,000 because of the change in equipment.
At about 1:25 a.m. Jacobs and another DPS officer Bob Shedd, were waiting alongside the freeway in Sulphur Springs. Melton drove up in a pickup and parked on the shoulder of the freeway. A truck and lowboy trailer carrying a front-end loader drove by and stopped approximately a quarter of a mile down the freeway. Melton and Jacobs got out of their vehicles and approached each other. At that point Jacobs arrested Melton and other officers in seven other police units converged on the scene and arrested appellant Sloan, who was driving the stolen White Freightliner.
Jacobs testified that the stolen equipment was a Model 4000 White Freightliner tractor, VIN 751629G, registered to Howard Freeman, Inc., in Irving, a Case W-8 front-end loader, VIN 9811831, and a lowboy trailer registered to Howard Freeman, Inc. in Irving. Jacobs testified that the truck was hot-wired. He further testified that the value of the truck would be $15,000, the value of the trailer would be $6,000 and the value of the W-8 loader would be $15,000. Finally Jacobs testified that he used no inducement, threats or coercion to get Melton to talk with him and that it was Melton who had set the initial $10,000 price on the equipment.
Appellant Melton took the stand and agreed that he and appellant Sloan stole the White Freightliner, lowboy trailer and the front-end loader. However, the gist of Melton's testimony was that he had been entrapped by both Lemmons and Jacobs. He testified that in the latter part of September 1978, he was working as a heavy equipment operator at a Dallas construction site when he was introduced to Lemmons. At this first meeting Lemmons asked Melton if he would be interested in dealing in stolen heavy equipment. Lemmons said he knew an individual who would pay a dollar a pound for heavy equipment that was in good shape. Melton testified that he told Lemmons he did not know anything about stealing equipment. In response, Lemmons told Melton to give him his phone number and he would have the buyer call him. Melton gave his phone number to Lemmons.
Two weeks later Lemmons telephoned Melton and said that a man named "Bill" would be calling him. The next day Melton received a phone call from "Bill." (This was in fact DPS Investigator Jacobs). According to Melton's testimony, when Jacobs asked him if he had any equipment for sale, Melton replied that he did not have anything. Jacobs then told Melton he would pay him $6500 for a D-8, $5,000 for a D-6 or $2500 for a backhoe. Once again Melton told Jacobs that he had no equipment, but he would look around and see if he could find anything for him. Jacobs then called Melton a second time. When Jacobs asked Melton if he had anything, Melton replied that he did not. Jacobs then asked if Melton was going to get him anything in the future and Melton replied that he would. According to Melton, Jacobs called him daily pressuring him to get him some equipment. In addition, Melton testified that he received another visit from Bo Lemmons who told him that if he did not have a way of transporting the equipment, Jacobs would furnish him a trailer. Lemmons also told Melton that Jacobs was his banker and had a lot of money and pull.
According to Melton, the first purchase that was actually arranged concerned a Case backhoe. Melton testified that although he agreed with Jacobs to deliver the backhoe to the Winfield Truck Stop he had no intention of actually making the delivery. Melton testified that after he did not show up at the truck stop, Jacob's called his home again. Melton testified that during this conversation Jacobs appeared to be very angry and he told Melton that Melton's failure to bring the equipment had caused him to lose $1,000. Melton testified that at this point, he became very afraid of Jacobs because he thought Jacobs might be involved in the Mafia. He felt that if he did not furnish some equipment for Jacobs, he might be hurt. Thus when Jacobs called him on October 24, Melton told him he had something lined up. And when Melton spoke with Jacobs on October 26, he told Jacobs he already had the equipment although he had not in fact yet stolen it. Finally Melton testified that he never would have stolen the property if Jacobs and Lemmons had not exerted pressure on him.
Appellant Sloan did not testify. However Melton testified that he first involved Sloan in the scheme after he had agreed to deliver the backhoe to the Winfield Truck Stop. It is undisputed that neither Jacobs or Lemmons ever had any contact with appellant Sloan before Sloan's arrest.
Both appellants initially argue that the State failed to prove the ownership of the stolen property. The indictment alleged in pertinent part that the appellants:
"... did then and there with intent to deprive the owner, Howard Freeman of property, namely 1972 White Freightliner # 4000 VIN751629G and a 1955 Trailmobile Float VIN105305 and a Model W8G International loader VIN9811831, did knowingly and intentionally exercise control over and appropriate such property without the owner's effective consent, which property had a value of $200.00 or more but...
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