Polk v. State

• Decision Date: 24 February 1988
• Docket Number: No. 1043-85,1043-85
• Citation: 749 S.W.2d 813
• Parties: Romey Lynn POLK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 813

749 S.W.2d 813

Romey Lynn POLK, Appellant, v. The STATE of Texas, Appellee.

No. 1043-85.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 24, 1988.

On Rehearing Feb. 24, 1988.

John H. Hagler, Dallas, for appellant.

Henry Wade, Former Dist. Atty., John Vance, Dist. Atty., Constance M. Maher and Ruth E. Plagenhoef, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING AFTER PETITION FOR

DISCRETIONARY REVIEW REFUSED

DUNCAN, Judge.

Appellant was convicted by a jury of theft of property of a value of $750.00 or more but less than $20,000.00. Tex.Penal Code Ann., § 31.03(b)(2) (Vernon Supp.1988). Punishment was assessed by the trial judge at seven years confinement in the Texas Department of Corrections. On appeal, the Dallas Court of Appeals reversed the appellant's conviction. Polk v. State, 695 S.W.2d 720 (Tex.App.--Dallas 1985, pet. granted). ¹ We granted the State's Motion for Rehearing after initially refusing its Petition for Discretionary Review to determine whether the court of appeals properly reviewed the sufficiency of the evidence. More specifically, and in the first instance, the State claims that the court of appeals failed to review the sufficiency of the evidence in light of the jury charge relative to whether the grand jury exercised due diligence to determine the identity of an "unknown" individual.

An automobile owned by a Beth Cowart was reported stolen on February 26, 1984. On March 8, 1984, the appellant asked a Dallas pawnbroker if he was interested in purchasing some stolen automobile parts. These parts were allegedly within a Jartran rental van in which the appellant and another man had arrived. Later, the pawnbroker informed the police of what the appellant had said. On the same day, an Officer Gargani answered a theft of service call regarding the Jartran truck. Having knowledge of both the theft of service call and what had transpired between the pawnbroker and appellant, Officer Gargani set out to locate the Jartran truck. While on patrol, Officer Gargani spotted the truck and arrested the appellant. Automobile parts from the Cowart automobile were thereafter found inside the Jartran truck.

At trial, among the other witnesses, the State called Larry Kortage, the assistant foreman of the grand jury which indicted the appellant. The former grand juror confirmed that the appellant was indicted based upon the evidence presented to the grand jury. He also testified that the grand jury had heard no evidence as to who originally stole the automobile and that this individual was therefore unknown to the grand jurors. On cross-examination, the former grand juror could not say for sure that he actually remembered this particular case or, consistently, whether or not the grand jury had exercised due diligence to ascertain the identity of the original thief. On redirect, Kortage testified that he had reviewed the transcript of the grand jury proceedings in this case prior to the trial. He also acknowledged that the appellant's case was one of over 400 cases heard by this particular grand jury over a three The appellant was tried under a two paragraph indictment. ²

month period. Finally, he reiterated that to the best of his recollection the grand jury had heard no evidence as to the identity of the thief.

According to the court of appeals, "[t]he issue [became] whether the grand jury used due diligence to learn the name of the unknown person." Polk v. State, supra, at 722. After concluding that the evidence failed to establish that the grand jury exercised due diligence in making such a determination, the court of appeals reversed the appellant's conviction and ordered a judgment of acquittal.

In one ground for review the State contends that the court of appeals failed to measure the sufficiency of the evidence with regard to grand jury due diligence in light of the jury charge that was given. Admittedly, the charge at issue does not require a finding of due diligence on the part of the grand jury.

[If you believe the defendant] ... did then and there unlawfully, knowingly or intentionally appropriate property, namely exercise control over property, other than real property, to-wit: a car door, or a partial front end sheet metal assembly, or two (2) car seats, or a rear air foil, or wheels, or tires, or radio speakers, of the value of at least $750.00 but less than $20,000.00, with the intent to deprive the owner, Beth Cowart, of the property, and the said property was stolen and the defendant did appropriate the said property knowing that the property was stolen by another, whose name and identity is unknown to the Grand Jurors, then you will find the defendant guilty of theft, as charged in the indictment. [Emphasis added.]

In Boozer v. State, 717 S.W.2d 608 (Tex.Cr.App.1984) we held that questions regarding the sufficiency of the evidence must be resolved in light of the charge which is given. See also Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1983); Marras v. State, 741 S.W.2d 395 (Tex.Cr.App.1987). In Boozer the jury charge unnecessarily increased the State's burden of providing independent evidence necessary to corroborate accomplice testimony. Likewise in Benson, the charge which was submitted constituted an unnecessary limitation on the legal theories available to secure a conviction for retaliation. In Marras, a capital murder case, the punishment charge erroneously instructed the jury that the defendant's prior conviction could only be used to show his intent. As a practical, evidentiary matter the instruction rendered evidence of the defendant's prior criminal record a nullity. In all three cases, the jury charge improperly increased the burden of proof required to secure a conviction. Or, in the last case, the death penalty.

In response to the State's contention, the appellant argues that the Benson-Boozer holdings are inapplicable because a conviction cannot stand on a jury charge which authorizes a conviction on less evidence than the law mandates. In other words, the appellant argues that although the jury charge in this instance failed to require a finding of due diligence on the part of the grand jury to ascertain the identity of the "unknown" individual, the appellant's conviction must nonetheless be reversed because the law requires a finding of due diligence in such an instance.

The appellant is undoubtedly correct when he asserts that Benson and Boozer, and more recently, Marras, cannot stand for the proposition that a jury charge may authorize a conviction on less evidence than the law requires. A review of the sufficiency of the evidence measured by the charge which is given presupposes a charge which is correct for the theory of the case presented. Benson v. State, supra, at 715 (Opinion on State's second motion for rehearing). As Judge Clinton later observed, "[i]t would be anomalous to measure The elements of the offense with which the appellant was convicted are: (1) a person, (2) with the intent to deprive the owner of property, (3) appropriates property, (4) which is stolen property, (5) knowing it was stolen, (6) by another. Franklin v. State, 659 S.W.2d 831 (Tex.Cr.App.1983); Dennis v. State, 647 S.W.2d 275 (Tex.Cr.App.1983).

                the sufficiency of evidence against an authorization that reduces the State's burden of proof from that which is minimally required under the law...."   Fain v. State, 725 S.W.2d 200, 204 (Tex.Cr.App.1986) (Clinton, J., concurring and dissenting).  Consequently, the issue in this case ultimately becomes whether a proper jury charge requires a finding of due diligence on the part of the grand jury to determine the identity of an unknown individual
                

In addition, the indictment also contained an allegation that the initial thief's "name and identity is unknown to the Grand Jury." The latter allegation, however, is no longer necessary to properly plead the offense of theft under § 31.03(b)(2). In McClain v. State, 687 S.W.2d 350 (Tex.Cr.App.1985) we stated that "it has now been acknowledged that the 'manner of acquisition' is inconsequential to the evil of a theft: the gravaman of theft is in depriving the true owner of the use, benefit, enjoyment or value of his property, without his consent." (Emphasis in original.) Id., at 353. ³ Consequently, the State must plead and prove only that the property was stolen by another.

It is true that unnecessary words or allegations may be rejected as surplusage if they are not descriptive of that which is legally essential to the validity of an indictment. Franklin v. State, supra, at 833. But where the unnecessary matter is descriptive of that which is legally essential to charge a crime, it must be proven as alleged even though needlessly stated. Id; Weaver v. State, 551 S.W.2d 419 (Tex.Cr.App.1977). Before reaching the primary issue, we must determine whether the additional, seemingly unnecessary allegation in the indictment is descriptive of that which is legally essential or merely surplusage.

As previously stated, the State must plead and prove that the property was stolen by another. The allegation that this individual was unknown to the grand jurors is descriptive of the "another" participant in the theft, or the original thief. This allegation is appropriate to an indictment for theft under § 31. 3(b)(2), V.A.P.C., because it elaborates on and describes the essential elements of the offense that must be pled. Franklin v. State, supra, at 834. Accordingly, such an allegation is not surplusage and the State was bound to prove the allegations in the indictment. That is, the State must prove that the name and identity of the person who stole the property was unknown to the grand jury.

Both the appellant and court of appeals cite Payne v. State, 487 S.W.2d 71 (Tex.Cr.App.1972) for the proposition that when an indictment alleges that the name of such a person is unknown, the...