Mulchahey v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: VOLLERS
• Citation: Mulchahey v. State, 574 S.W.2d 112 (Tex. Crim. App. 1978)
• Decision Date: 13 December 1978
• Docket Number: No. 3,No. 54123,54123,3
• Parties: Ray Leroy MULCHAHEY, Appellant, v. The STATE of Texas, Appellee

Page 112

574 S.W.2d 112

Ray Leroy MULCHAHEY, Appellant, v. The STATE of Texas, Appellee.

No. 54123.

Court of Criminal Appeals of Texas, Panel No. 3.

Dec. 13, 1978.

Anthony C. Aguilar, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Thomas C. Roepke, Asst. Dist. Atty., El Paso, for the State.

Before ROBERTS, PHILLIPS and VOLLERS, JJ.

VOLLERS, Judge.

This is an appeal taken from five convictions for theft. Punishment was enhanced under the provisions of V.T.C.A. Penal Code, Section 12.42(d) ¹ and was assessed at confinement in the Texas Department of Corrections for life on each count in the indictment.

Apparently, this is a prosecution brought under the provisions of V.T.C.A. Penal Code, Chapter 3, providing for prosecution in a multiple count indictment of charges arising from the same criminal episode. The indictment alleged five separate offenses of theft in five separate counts. Each count was enhanced by the allegation of prior convictions.

The pertinent portion of each indictment alleging each primary offense recites that appellant

Did then and there unlawfully intentionally and knowingly exercise control over property other than real property, to-wit: (a vehicle) of the value of ($2,000.00 or more but less than $10,000.00) ² without the effective consent of . . ., the owner thereof, and with intent to deprive (the named owner) of said property, . . .

In grounds of error 1 through 5, appellant attacks the five counts on the basis that they are fundamentally deficient in that they fail to inform appellant whether he is charged with the actual taking of each vehicle in question or is charged with receiving and concealing stolen property. Appellant cites Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974) for the proposition that "theft" and "receiving and concealing" are separate and distinct offenses, each of which is constituted by different elements. This argument is erroneous in view of appellant's indictments having been returned after the effective date of the present penal code. Section 31.02, V.T.C.A. Penal Code clearly provides that "theft as defined in Section 31.03 of this code constitutes a single offense superseding the separate offenses previously known as theft . . . and receiving or concealing stolen property."

The instant indictment alleges offenses pursuant to the following section of V.T.C.A. Penal Code (effective January 1, 1974 and before amendment effective September 1, 1975):

Section 31.03 Theft

(a) A person commits an offense if, with intent to deprive the owner of property:

(1) he obtains the property unlawfully; or

(2) He exercises control over the property, other than real property, unlawfully.

(b) Obtaining or exercising control over property is unlawful if:

(1) the actor obtains or Exercises control over the property without the owner's effective consent ; or

(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen. (Emphasis supplied.)

The allegations contained in each of these counts follow the suggested enumeration of elements set out in Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976) (opinion on State's Motion for Rehearing), in that they allege:

(1) a person

(2) with intent to deprive the owner of property

(3) exercises control over the property, other than real property

(4) without the owner's effective consent.

The indictments are not fundamentally defective. Grounds of error 1 through 5 are overruled.

The evidence adduced at the single trial reflects that a man who could not be positively identified as appellant left an Avis Car Sales lot in El Paso on March 15, 1974, in a 1972 Ford station wagon in order to test drive the car. The automobile was not returned. The station wagon, valued at approximately $2500, was retrieved in September of 1974 from Saul Saucedo. Saucedo had bought the station wagon from appellant who stated "he was some kind of dealer from the government;" appellant had given Saucedo the title, license receipt and license plates to the station wagon which Saucedo duly registered with the Texas Highway Department. Saucedo stated he had no reason to believe the car did not belong to appellant until he was contacted by a law enforcement officer and told that the car was thought to be stolen.

On approximately June 17, 1974, a Dodge Voyager van disappeared from the used car lot of Dick Poe Chrysler-Plymouth in El Paso. The value of the van was placed at about $5,000. The special owner, Johnny Padilla, had no knowledge as to who had taken the vehicle and testified that he had given no one permission to do so. The vehicle was recovered in the fall of 1974 from Gilbert Estorga. Estorga testified that his friend, Saul Saucedo had told him about the good deal he got in buying a station wagon from appellant. Estorga thereafter initiated contact with appellant who told him he had a van for sale. On approximately July 26, 1974 Estorga paid appellant $950 in cash as a down payment and appellant gave Estorga a receipt, a written warranty for repairs and a title to the van. All of the transaction was witnessed by a notary public. Estorga testified that the license plates were already on the van, which he assumed had been appellant's personal vehicle. Appellant told Estorga he had obtained the van through the "Embassy Corporation," which was in fact reflected on the face of the title. Estorga sent the paperwork "to Austin" and received a certificate of title to the van. Estorga stated that the transaction appeared perfectly legitimate, and it was only when Saucedo called to advise him of the stolen status of his station wagon that Estorga contacted the police and discovered that the van he had purchased was likewise stolen.

Johnny Padilla, the used car sales manager at Dick Poe Chrysler-Plymouth, testified that a 1974 Plymouth Custom Surburban wagon disappeared from his lot the same night the Voyager van was taken. Padilla, the special owner of the vehicles, evaluated the wagon at $4900 and stated he gave his permission to no one to take the wagon. The wagon was ultimately recovered from Hector Maynes. Maynes testified that on approximately August 1, 1974 he was told by his brother-in-law, David Escobar, that appellant had a 1974 Plymouth station wagon he would sell for $2400. Escobar brought the vehicle and a car title to Maynes. Maynes met appellant for the first time when appellant and Escobar came to Maynes' place of employment to make the sales transaction. Maynes had to borrow some of the money, so the transaction took place before a lending officer at the West Texas State Employees Credit Union. It was Maynes' understanding that he was buying the wagon from both Escobar and appellant; appellant was to receive $2000 and Maynes gave $500 directly to Escobar. Maynes stated that he had no reason to doubt the legitimacy of the sale. On cross-examination it was brought out that Escobar had told Maynes that appellant "could get vehicles at a very low rate because he had some purchasing power as a federal agent."

The latter part of August, 1974, a 1974 Ford Torino Grand Elite was discovered to be missing from the storage lot of Kemp Ford in El Paso. The auditors of Ford Motor Credit Company had been conducting an inventory check at the time of the discovery; the car had been seen last on August 15. Johnny Pattison, the general manager of Kemp Ford, estimated the value of the car at $5,000 and stated that it was a "brand new unregistered car" for which he had the manufacturer's certificate of origin. The car was recovered by Pattison on October 3, 1974 from the El Paso Police Auto Theft Department. Joe Gutierrez testified that on August 7, 1974, he responded to an ad in the paper concerning a car for sale and ultimately got in contact with appellant. Gutierrez met with appellant and gave appellant $700, for which appellant gave him a receipt. Two days later, appellant met Gutierrez outside the latter's bank as Gutierrez and a bank officer were looking over the car. Inside, the bank officer gave appellant a bank draft for $2600 and appellant gave Gutierrez some "papers" among which was apparently a title reflecting appellant as the vehicle's owner. ³ It was brought out on cross-examination that appellant "mentioned he had bought (the car) and he had paid cash through the South Corps Embassy from Viet Nam."

Roy Blevins, the used car sales manager at Fortune Lincoln Mercury in El Paso testified that on September 17, 1974, a used 1974 Lincoln Continental Mark IV was "taken from the lot without permission." Blevins had no knowledge of how or by whom the car was taken. The value of the car was estimated by Blevins at $9,000. William B. McGarity testified that in October, 1974, a man who gave his name as R. A. Mulchahey came into Kumpf Motor Car Co. in Denver, Colorado with a wrecked Lincoln Continental which bore Texas license plates. McGarity stated that the car was "one just like" the Mark IV which had disappeared from Fortune Lincoln Mercury in El Paso. He could not positively identify the appellant as the man who brought the wrecked automobile in. There was no testimony as to how or by whom the car was brought back to Texas and returned to Fortune Lincoln Mercury, though Roy Blevins stated that it was returned to him in January, 1975, and he knew it had been in Denver, Colorado.

In addition to the testimony concerning the five charges against appellant, the State introduced three recent and similar transactions ⁴ in which appellant had sold automobiles with apparently clear titles to other individuals who later discovered the vehicles had been stolen. Rudy Sandoval, the owner of a Dodge dealership in Las Cruces, New Mexico, testified that the appellant had discussed with him his interest in buying two four wheel drive power wagon Dodge pickup trucks in August of 1974. Appellant told Sandoval he was from the "Van Horn, Pecos (Texas) area" and was in New...