Thomas v. State

• Decision Date: 22 June 1988
• Docket Number: No. 972-86,972-86
• Citation: 753 S.W.2d 688
• Parties: Ricky THOMAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 688

753 S.W.2d 688

Ricky THOMAS, Appellant, v.The STATE of Texas, Appellee.

No. 972-86.

Court of Criminal Appeals of Texas En Banc.

June 22, 1988.

John H. Hagler, on appeal only, Dallas, for appellant.

Henry Wade, Former Dist. Atty., John Vance, Dist. Atty., and Patricia Poppoff Noble, Kathleen A. Walsh, Lana McDaniel and Bruce Isaacks, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

The record reflects that Ricky Thomas, henceforth appellant, was convicted by a jury of felony theft (third degree) of an automobile, a 1985 Ford LTD, hereafter "Ford LTD", which was alleged to have belonged to Fred Reed, who was then the manager of Snappy Car Rental Company of Garland.Henceforth, we will refer to the latter as "Snappy".The trial judge assessed appellant's punishment, enhanced with one prior felony conviction for burglary of a habitation, at eight (8) years confinement in the Department of Corrections.On appeal, the Dallas Court of Appeals sustained appellant's third point (nee ground) of error, that "The evidence is insufficient to prove an 'intent to deprive' at the time of the taking".The Court found that the evidence was insufficient to prove an "intent to deprive".It reversed the trial court's judgment in an unpublished opinion and ordered that an acquittal be entered on appellant's behalf.SeeThomas v. State, No. 05-85-01172, August 7, 1986.We will vacate the judgment of the court of appeals and remand this cause to that court for further proceedings not inconsistent with this opinion.

The indictment, which was filed on February 28, 1985, in relevant part alleges that appellant, on or about December 15, 1984

did then and there unlawfully knowingly and intentionally appropriate property, namely: exercise control over property, other than real property, to-wit: an automobile, of the value of at least $750.00 but less than $20,000.00, without the effective consent of F. REED, the owner of the said property who had a greater right to possession of the said property than the defendant, with the intent to deprive the said owner of the said property, namely: to withhold the said property from the said owner permanently, and such appropriation was without effective consent since no assent in fact was given by the owner or a person legally authorized to act for the owner.

The State's evidence established that on December 10, 1984, appellant entered into a rental car agreement with one of Snappy's employees for a 1985 Ford LTD.This vehicle is one and the same vehicle that appellant is alleged to have stolen from Reed, Snappy's manager.Appellant represented that he needed a rental car to temporarily replace his vehicle which was then undergoing repairs for damages sustained when appellant's vehicle had an accident with another vehicle.The owner of the other vehicle's liability insurance carrier agreed to pay and did pay the rental cost until December 26, 1984, when it refused to continue making the payments.Because of this, demand was made of appellant by employees of Snappy that the vehicle be returned to Snappy.After the vehicle was not returned on December 26, 1984, Snappy's employees made unsuccessful efforts to locate the vehicle.On January 22, 1985, a report was made to the Dallas Police Department that the vehicle had been stolen by appellant.

Over objection, the State was permitted to show that during the time when Snappy's employees were attempting to locate the 1985 Ford LTD, on January 12, 1985, appellant entered into another rental car agreement with J. Steven Fleming, an employee of Trans-National Leasing Company, henceforth "Trans-National", for a 1984Ford Tempo, which agreement was to last until January 18th, but was later extended until January 21st.Another insurance company agreed to pay and did pay the rental cost on this vehicle until January 21st when it refused to continue making the payments.Unsuccessful efforts were commenced by Trans-National's employees on that day to reobtain possession of the vehicle.On January 22, 1985, this vehicle was involved in an accident.When contacted about the accident, appellant told Walter Ward, the supervisor of Trans-National, that he had loaned the vehicle to Ray Clayton(this person's name may be Ray Charleston, rather than Ray Clayton, but as the record more often refers to him as Ray Clayton than Ray Charleston, we will use the name Ray Clayton), apparently a friend of appellant's, who was driving the vehicle with appellant's consent when the accident occurred.Evidence was adduced that the driver of the other vehicle, Cecil Carey, took the keys from the Ford Tempo, took possession of same, and retained possession until March 22nd when an employee of Trans-National recovered the vehicle from the Dallas Police Department's compound.We are not privy to the details why Carey seized the vehicle as he did, or why he retained possession of same as long as he did.

On January 31, 1985, Snappy's employees finally located Snappy's Ford LTD vehicle at the Dallas Police Department's compound.Since appellant obtained possession of the vehicle it had been driven almost 12,000 miles.The vehicle ended up at the compound as a result of the following events.

On January 30, 1985, Dallas Police Officer Daniel Patterson and his partner Officer Morrell, who were then on patrol duty, stopped a vehicle driven by Leon Bertram, who was then alone, for speeding.There is a tenuous suggestion in the record that Bertram may then have been appellant's employer, Bertram's Trucking Company.Patterson contacted his dispatcher and asked the dispatcher to look on the "hot sheet" to see if the vehicle had been reported missing.After not hearing back from the dispatcher for a reasonable period of time, Patterson then warned Bertram about his speeding, after which Bertram drove off.Soon thereafter, Patterson's dispatcher notified Patterson that the vehicle had been reported stolen.Patterson and Morrell then pursued the vehicle, stopped it, and arrested Bertram, for "investigation of unauthorized use of a motor vehicle."Bertram, however, was never formally charged.Patterson had the vehicle taken to the police storage lot, where it remained until it was released to an employee of Snappy's.Thereafter, appellant was indicted, tried, and convicted of felony theft of the Ford LTD.

On direct appeal, appellant made a three prong sufficiency attack on his conviction.

Appellant first asserted that the evidence was "insufficient to prove that he knowingly or intentionally appropriated the automobile."We find appellant's argument under this contention suggests a rather fundamental misunderstanding of our theft statute and of the definitions which apply to it.The term "appropriate" refers, among other things, to any "exercise [of] control over property other than real property."Penal Code, § 31.01(5)(B).Yet, in arguing his contention, appellant does not maintain, nor could it conceivably be logically maintained by anyone, that he did not exercise control over the Ford LTD at some point.Moreover, appellant does not appear to argue that his exercise of control over the vehicle was somehow unwitting or unintentional in the sense that he had no "conscious objective" to control the vehicle and was "unaware" of doing so.SeePenal Code, § 6.03(a), (b), which provides for the definitions of the culpable mental states of intentionally and knowingly.By process of elimination, therefore, it is possible that, in asserting that there was no proof of "criminal intent,"appellant may be arguing that his appropriation of the vehicle was not shown to be "unlawful."If so, we find that appellant's brief is inartfully drawn.

We pause to point out that in Reynolds v. State, 547 S.W.2d 590, 595(Tex.Cr.App.1977), this Court on State's motion for rehearing pointed out the following, regarding the use of the term "unlawfully", which is defined in Penal Code § 1.07(a)(36) as meaning "criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege", in the indictment or information: "the allegation of 'unlawfully' pleads only a conclusion of law omitting the facts necessary to that conclusion.The notice requirements of an indictment under the Texas Constitution(Art. I, § 10, Texas Constitution) are not met by that allegation."(595).

Appellant next asserted on appeal that the evidence was insufficient because the most that the evidence established was that he only intended to withhold the vehicle temporarily.In support of his argument that a temporary withholding of corporeal personal property does not "deprive" the actual owner of the property, appellant refers us to this Court's opinion of Griffin v. State, 614 S.W.2d 155(Tex.Cr.App.1981).We find appellant's reliance upon Griffin, supra, as authority to support this contention, misplaced.Griffin, supra, merely redefined the non-statutory term "temporary" to mean "less than extended" instead of "less than permanent."Our present Penal Code defines the term "deprive" as follows: "to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner."Penal Code, § 31.01(3)(A).As explained in Griffin, supra: "The only change made by the present Penal Code is that the concept of temporary holding has been reduced, from anything less than permanent, to something shorter than 'for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner.' "(158).Whether appellant intended to withhold the vehicle from Reed, Snappy's manager, for a sufficiently extended period of time is not, however, a meaningful issue in the instant cause since the State chose to allege in the...