Oliver v. State
| Decision Date | 14 November 1979 |
| Docket Number | No. 1,No. 58401,58401,1 |
| Citation | 613 S.W.2d 270 |
| Parties | Charles Douglas OLIVER, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Tom J. Brian, Wichita Falls, for appellant.
Timothy D. Eyssen, Dist. Atty. and Dan Tompkins, Asst. Dist. Atty., Wichita Falls, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and DOUGLAS and W. C. Davis, JJ.
Appellant was convicted of theft over $200 and less than $10,000. The court assessed punishment, enhanced under V.T.C.A., Penal Code, Section 12.42(d), at life.
The indictment alleged:
"... that Charles Douglas Oliver on or about the 27th day of September A.D., 1975 and anterior to the presentment of this indictment, in the County of Wichita and State of Texas, did then and there unlawfully appropriate property, to-wit: a pistol of the value of $149.95 from Coyle Defoor without the effective consent of the owner, Coyle Defoor, and with intent to deprive the said owner of said property and did appropriate property, to-wit: a pistol of the value of $65.00 from Charles Halovek without the effective consent of the owner, Charles Halovek, and with intent to deprive the said owner of said property and both of said pistols were obtained, as alleged, in one scheme and continuing course of conduct, and the aggregate value of the pistols stolen was more than $200 and less than $10,000."
Charles Halovek, the owner of the sixty-five dollar pistol, testified that appellant came in his store and requested to see one of the pistols. Halovek gave Oliver a .38 caliber pistol. Oliver then suddenly bolted out the door and ran down a neighboring alley. Halovek identified Oliver as the thief.
Coyle Defoor testified that, on the same day, a pistol was taken from him under similar circumstances. When asked about the identity of the robber, Defoor testified:
He then testified, over appellant's objection:
On cross-examination, Defoor testified:
In Barrett v. State, 547 S.W.2d 604 (Tex.Cr.App.1977), we reversed the defendant's conviction, based on his guilty plea, because of the lack of an affirmative identification of the defendant as the attacker and the lack of evidence connecting the defendant with the crime. In Ledet v. State, 533 S.W.2d 817 (Tex.Cr.App.1976), the defendant was charged with oral sodomy. The complaining witness, an eight-year-old boy, was unable to identify the defendant as the sodomist. In spite of testimony from the victim's mother that the boy was found in the defendant's apartment right after the offense and that the boy told her about the commission of the offense, this Court held the evidence on identification to be insufficient.
The evidence in the case at bar is even less compelling than in Ledet. Even though Defoor testified that he identified a Charles Oliver as the robber, he was unable to identify the appellant as the same Charles Oliver. There was no evidence admitted that would connect Oliver with the crime. There was no testimony by an arresting officer that Oliver was found with the stolen guns in his possession, nor was there any evidence by the officer conducting the lineup that Defoor had identified appellant as the robber.
Because it was necessary for the State to consolidate both offenses into a single count in order to prosecute a felony, the evidence is insufficient to support the indictment.
The conviction is reversed and reformed to reflect a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
Before the court en banc.
OPINION ON STATE'S MOTION FOR REHEARING
This is an appeal from a conviction for felony theft, where the punishment was assessed by the court after a verdict of guilty at life imprisonment as a result of two prior felony convictions alleged for enhancement to which the appellant pled "true." See V.T.C.A., Penal Code, § 12.42(d).
The indictment in alleging the primary offense alleged in part:
"... that Charles Douglas Oliver on or about the 27th day of September A.D., 1975 and anterior to the presentment of this indictment, in the County of Wichita and State of Texas, did then and there unlawfully appropriate property, to-wit: a pistol of the value of $149.95 from Coyle Defoor without the effective consent of the owner, Coyle Defoor, and with intent to deprive the said owner of said property and did appropriate property, to-wit: a pistol of the value of $65.00 from Charles Halovek without the effective consent of the owner, Charles Halovek, and with intent to deprive the said owner of said property and both of said pistols were obtained, as alleged, in one scheme and continuing course of conduct, and the aggregate value of the pistols stolen was more than $200 and less than $10,000."
It is obvious the State alleged the two offenses in the first paragraph of the indictment under V.T.C.A., Penal Code, § 31.09, in order to elevate two Class A misdemeanor thefts to a third-degree felony. See V.T.C.A., Penal Code, § 31.03(d)(3), (4). The jury having found appellant guilty of the primary felony offense alleged, the court assessed punishment at life in view of appellant's plea of "true" to the two prior felony convictions alleged.
On original submission a panel of this court speaking through Judge Douglas found the evidence insufficient to show that the appellant stole the "Coyle Defoor" pistol as alleged in the first paragraph of the indictment on the basis that Defoor was unable in court to identify the appellant as the thief who took the pistol in question and fled from Defoor's store. The panel concluded, "Because it was necessary for the State to consolidate both offenses into a single count in order to prosecute a felony, the evidence is insufficient to support the indictment." In light of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), the conviction was reversed and reformed to reflect a judgment of acquittal.
On rehearing the State urges that a Class A misdemeanor theft is a lesser included offense of felony theft, see Article 37.09, V.A.C.C.P., and that a conviction for a lesser included offense may be had where a greater offense is charged. See V.T.C.A., Penal Code, § 37.08, V.A.C.C.P. It argues under any circumstances the evidence was sufficient to support a conviction for a Class A misdemeanor theft of the "Charles Halovek" pistol and it should not be prohibited from re-trying the appellant for that offense.
We need not reach the State's contention on rehearing as we have determined en banc to re-examine the evidence as to whether Defoor was able to identify the appellant as the man who took the pistol from his store. On direct examination, Coyle Defoor testified:
Defoor related a man walked in his store and wanted to look at a specific gun. Defoor handed it to him with another clerk standing there in front of him. Defoor was waiting on another customer when the man ran out of the store and Defoor chased him for half a mile.
The record then reflects:
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...325, 331 (1886). "Evidence as to the identity of a" criminal "may be proven by direct or circumstantial evidence." Oliver v. State, 613 S.W.2d 270, 274 (Tex.Crim.App.1981) (op. on reh'g) (en banc); accord Lockwood v. State, 237 S.W.3d 428, 432 (Tex.App.-Waco 2007, no pet.) (quoting Clark v.......
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Long v. State
...Rather, "[e]vidence as to the identity of a thief can be proven by direct or circumstantial evidence." Oliver v. State , 613 S.W.2d 270, 274 (Tex. Crim. App. 1979). Lack of in-person contact is entirely consistent with a fraudulent scheme designed for the most part to happen online and, whe......
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Howard v. State, 08-12-00154-CR
...direct or circumstantial evidence. Johnson v. State, 263 S.W.3d 405, 412 (Tex.App. -Waco 2008, pet. ref'd), citing Oliver v. State, 613 S.W.2d 270, 274 (Tex.Crim.App. 1981)(op. on reh'g)(en banc). The positive identification of a defendant as the perpetrator is sufficient to support a convi......
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