Sanders v. State

• Decision Date: 22 December 1982
• Docket Number: No. 63900,63900
• Citation: 664 S.W.2d 705
• Parties: Robert Lee SANDERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 705

664 S.W.2d 705

Robert Lee SANDERS, Appellant, v. The STATE of Texas, Appellee.

No. 63900.

Court of Criminal Appeals of Texas En Banc.

Dec. 22, 1982.

On Rehearing Jan. 4, 1984.

Rehearing Denied March 14, 1984.

Frank R. Hughes, Liberty, for appellant.

John B. Holmes, Jr., Dist. Atty., James C. Brough and Mollie Childs, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

This is an appeal from a conviction for theft from the person. V.T.C.A, Penal Code Sec. 31.03(d)(4)(B). Punishment was assessed at ten years.

In his only ground of error appellant argues reversible error was committed when the trial court refused his requested charge on misdemeanor theft of property with value of five dollars or more but less than $20. V.T.C.A., Penal Code Sec. 31.03(d)(2)(A). Evidence showed the value of the property taken to be about $19. The State's evidence showed appellant took the property from the person of the complainant as he was entering a bank. This conduct constitutes a third degree felony under Sec. 31.03(d)(4)(B), supra.

Appellant testified to a different set of facts. He admitted taking the property, but claimed he found it on the steps of the bank and did not take it from the person of the complainant or even know to whom it belonged. He testified he did steal the property and admitted he intended to deprive the true owner of the property. The issue is whether this testimony warranted submission of a charge on theft of property, a class B misdemeanor under Sec. 31.03(d)(2)(A), supra.

The State advances three arguments to support its position that no error resulted from refusal of the requested charge. First, the State argues that value of the property is a jurisdictional element and must be alleged for a prosecution under Sec. 31.03(d)(2)(A), supra, and that because no such allegation was made in this prosecution under Sec. 31.03(d)(4)(B), there was no jurisdiction for submission of the charge requested. While it is true "An indictment or information should allege every fact which may affect the degree or kind of punishment," Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.); Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.); this rule of law does not prohibit conviction for an offense included in the offense properly alleged merely because the elements of the included offense are not all set out in the indictment. See Day v. State, 532 S.W.2d 302, 314-316 (Tex.Cr.App.). The indictment in this case properly alleged all facts necessary to establish the punishment for theft under Sec. 31.03(d)(4)(B), supra, and to invoke jurisdiction of the district court. The court therefore had jurisdiction to charge the jury and render judgment on any offense bearing a proper relationship to the alleged offense, Arts. 37.08, 37.09, V.A.C.C.P., even if the elements are not alleged in the indictment, subject to any objection by the defendant on grounds of insufficient notice. See Day, supra, at footnote 7. The State's first contention is without merit. This brings us to the State's second contention, which is that theft under Sec. 31.03(d)(2)(A) is not a lesser included offense of theft from the person, and the charge was for this reason properly denied.

The central point of the State's second argument is: " 'Theft,' if taken to mean theft by appropriation with a value alleged for jurisdiction of the subject matter and value proved for punishment, is not a lesser included offense to theft from [the] person." The argument relies on the fact that theft from the person is a third degree felony under Sec. 31.03(d)(4)(B) regardless of the value of the property, while conviction under the charge requested by appellant would require proof of value. This, reasons the State, shows that additional proof is required for conviction under Sec. 31.03(d)(2)(A) than is required under Sec. 31.03(d)(4)(B). While this argument may have merit with respect to whether a charge under Sec. 31.03(d)(2)(A) would be authorized as a lesser included offense under Art. 37.09(1), V.A.C.C.P., the argument is without merit when Art. 37.09(2) is considered. That part of the statute provides:

"An offense is a lesser included offense if:

"...

"(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

"..."

The offense alleged and proven by the State and the offense admitted by appellant when he testified differ only in the "less serious injury or risk of injury to the same person," i.e., to the owner of the property. Theft from the person includes a risk of injury to the person from whom the property is taken that is not present when theft is committed by taking property from the sidewalk, as appellant testified the facts to have been. Injury resulting from deprivation of the value of the property is the same in both instances even though proof of the value is not required to establish theft from the person. Conviction for theft under Sec. 31.03(d)(2)(A) may be a lesser included offense of theft from the person. The State's second argument is without merit.

This brings us to the State's last argument, which is that under the facts of this case the issue was not raised. The State relies on testimony elicited from appellant during cross-examination, that when he picked up the property he did not know how long it had been there or where the owner might be. The State contends this shows that appellant admitted finding what he thought to be abandoned property and that abandoned property, belonging to no one, cannot be the object of a theft. Abandonment, however, depends on an intentional relinquishment by the abandoning owner. 1 T.J.3rd Abandoned Property § 1. The property here was not abandoned. Had appellant testified that he believed the property had been abandoned, he would have been entitled to a charge on mistake of fact. V.T.C.A., Penal Code Sec. 8.02. Appellant, however, did not testify that he thought the owner had abandoned the property. The closest he came was during cross-examination when he said he thought it was lost property. Lost property is not the result of an intentional relinquishment, and thus is not abandoned property. Appellant admitted stealing the property, saying he intended to deprive the owner of the property. His testimony was a judicial confession to those elements of theft, and raised the issue that he was guilty of the lesser included offense. The trial court erred in refusing the requested charge.

The judgment is reversed and the cause remanded.

ONION, P.J., and McCORMICK, J., dissent.

OPINION ON STATE'S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for theft from the person. V.T.C.A. Penal Code, Sec. 31.03(d)(4)(B). Punishment was assessed at ten years.

On original submission, the Court reversed appellant's conviction after concluding that the trial court improperly refused his requested charge on misdemeanor theft of property with value of $5.00 or more but less than $20.00. V.T.C.A. Penal Code, Sec. 31.03(d)(2)(A). We held that Sec. 31.03(d)(2)(A), supra, can be a lesser included offense of Sec. 31.03(d)(4)(B), supra, under Art. 37.09(2), V.A.C.C.P.

Art. 37.09(2), V.A.C.C.P., reads:

"An offense is a lesser included offense if:

"...

"(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;" (Emphasis added.)

In our original opinion, we noted that:

"The offense alleged and proven by the State and the offense admitted by appellant when he testified differ only in the 'less serious injury or risk of injury to the same person,' i.e., to the owner of the property. Theft from the person includes a risk of injury to the person from whom the property is taken that is not present when theft is committed by taking property from the sidewalk, as appellant testified the facts to have been. Injury resulting from deprivation of the value of the property is the same in both instances even though proof of the value is not required to establish theft from the person." (Emphasis added.)

This analysis is sound if "offense" as used in Art. 37.09(2), V.A.C.C.P., refers only to the conduct of the accused.

But conduct, under Sec. 1.03(a) of the Penal Code, "does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioner's court, or rule authorized by and lawfully adopted under a statute."

Thus, the "offense" that must differ from the "offense charged" in one way only is the "offense" as established by statute.

In the instant case, Sec. 31.03(d)(4)(B), supra, is the "offense charged" and Sec. 31.03(d)(2)(A), supra is the purportedly "lesser included offense." When the two "offenses" are compared, it is clear that less serious risk of injury under (d)(2)(A) is not the only difference between them. Under (d)(2)(A) the value of the property stolen must be established. Under (d)(4)(B) this is not necessary. Thus, according to the wording of Art. 37.09(2), V.A.C.C.P., (d)(2)(A) is not a lesser included offense of (d)(4)(B).

The "offense" of theft as defined by statute must, in any given case, include one of the provisions of Subsection (d). An examination of our case law will illuminate this point.

In Peoples v. State, 566 S.W.2d 640, 641 (Tex.Cr.App.1978), appellant was convicted of theft under V.T.C.A. Penal Code, Sec. 31.03(d)(4)(A), a third degree felony. The indictment was ruled fundamentally defective for failing to allege value of the property stolen. We held that, "the value of property must be stated where it is made the basis of punishment; and the injury done to the owner of property must be averred where the amount of injury is an essential...