Shirley v. State, 46565

• Citation: 501 S.W.2d 635
• Decision Date: 28 November 1973
• Docket Number: No. 46565,46565
• Parties: George Henderson SHIRLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 635

501 S.W.2d 635 George Henderson SHIRLEY, Appellant,
v.
The STATE of Texas, Appellee. No. 46565. Court of Criminal Appeals of Texas. Nov. 28, 1973.

C. C. Divine, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell, George Karam, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

QUENTIN KEITH, Commissioner.

The jury convicted appellant of the theft of a pickup truck of the value of the more than $50 and assessed his punishment at confinement for ten years.

The State established that Mrs. Ray W. Dodgen owned a 1969 half-ton Chevrolet pickup truck which she had loaned to one Larry Joe Pair who parked the truck in his front yard in Harris County on November 23, 1970. That was the last time Pair saw the truck and it was established that the consent or permission of Mrs. Dodgen or Mr. Pair was not given for anyone to take the vehicle. Mrs. Dodgen's truck, according to the State's testimony, had a white cab, a maroon body, and was equipped with a camper type truck cover. She had made some peculiar adaptations to this particular truck by drilling holes in the bed of the truck and others upon the dash for the automatic brake control, all of which the witnesses explained to the jury. Her truck

Page 636

was equipped with a step bumper bearing the dealer's name: 'Bud Moore Chevrolet.'

Sometime after the disappearance of her truck from Pair's yard, Mrs. Dodgen saw her truck in the storage yard of the Houston Police Department. It has been extensively modified in that the seat covers, the floor rug, the steering wheel, the bumper, and the frame were different. The bumper on the vehicle at the police station bore the legend: 'Ramsey Chevrolet, Inc.' Additionally, the truck had been repainted. Mrs. Dodgen was corroborated in her identification of the truck by her son, Kenneth Dodgen, who told of the alterations or holes which he had drilled in the Dodgen vehicle. Kenneth testified that, notwithstanding the modifications, it was Mrs. Dodgen's vehicle which he inspected at the police storage yard.

George Nations, a wholesaler of used automobiles, testified that he had known appellant for about six months, during which time he had bought several automobiles from him. On December 18, 1970, appellant brought a truck and offered to sell it to the witness, presenting a certificate of title showing title in one 'Quint Booth', but told the witness that he was the owner and asked $1900 for the vehicle. Nations called the police who, armed with a warrant, arrested appellant and seized the truck. Upon the trial, Nations identified pictures of the vehicle taken at the police station yard (Mrs. Dodgen's truck) as being the one which appellant had offered to sell to him.

Detective Gartman of the auto theft division of the Houston Police Department examined the truck seized at the time of the arrest of appellant, and testified that the identification number of the truck had been attached to the inside of the door by 'pop rivets' rather than with rivets applied in the factory. The confidential identification number stamped upon the frame of the truck corresponded with the number upon Booth's certificate of title. It was established that Booth's truck was demolished in a crash in which has stepson had been killed; the wreckage was eventually sold to one Eddie Romans, a salvage dealer in Houston who, in turn, sold it to appellant, delivering the title and identification plates to him.

One J. L. Weidner, then serving a six year sentence for auto theft, was offered as an accomplice witness by the State. He testified that one Joe Schmidt stole a 1969 Chevrolet truck, maroon and white. Weidner said that he was present when Schmidt agreed with appellant to steal a 1969 or 1970 Chevrolet pickup truck for which appellant was to pay Schmidt $300 when it was sold. According to Weidner, the Dodgen truck was delivered to appellant's home in Montgomery County and stripped and identification numbers from the Booth wrecked vehicle were used upon the Dodgen vehicle. This included a change in frame, a change of bumpers, repainting, etc.

It was shown that appellant had already acquired the wreckage (and papers) of the Booth vehicle before his conversation with Schmidt, so all that he needed was another truck of similar vintage which could be used with the Booth vehicle frame and, with superficial modifications, sold under the Booth title. We have photocopies of many pictures as well as other documentary evidence in the record which the...