Todd v. State, s. 59630

• Court: Texas Court of Criminal Appeals
• Writing for the Court: PHILLIPS
• Citation: Todd v. State, 601 S.W.2d 718 (Tex. Crim. App. 1980)
• Decision Date: 14 May 1980
• Docket Number: Nos. 59630,No. 3,59631,s. 59630,3
• Parties: Michael Lynn TODD, Appellant, v. The STATE of Texas, Appellee

Page 718

601 S.W.2d 718

Michael Lynn TODD, Appellant, v. The STATE of Texas, Appellee.

Nos. 59630, 59631.

Court of Criminal Appeals of Texas, Panel No. 3.

May 14, 1980.

Randy Taylor, Dallas, for appellant.

Henry Wade, Dist. Atty. and T. Michael Sutton, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before PHILLIPS, TOM DAVIS and DALLY, JJ.

OPINION

PHILLIPS, Judge.

These are appeals from a conviction for theft over $200 (Cause No. 59,631) and an order revoking probation based on appellant's commission of the above theft (Cause No. 59,630). Punishment in the former cause is imprisonment for three and one-half years and a fine of $250. A sentence of two years was imposed in the latter cause.

Appellant contends that the evidence is insufficient to sustain both the conviction and the order revoking probation. Appellant also complains of the court's failure to grant his motion for new trial based on newly discovered evidence, and the court's inclusion in its jury charge of the law on criminal responsibility for the conduct of another.

We deal with the sufficiency of the evidence first.

On the afternoon of June 5, 1977, Kenneth Mayfield was traveling south on Loop 408 on his way home to Duncanville, when he saw a yellow pickup truck traveling north, towing what Mayfield recognized was his Lincoln arc welder. Mayfield recognized the welder as his because of customizing work he had done on it. Mayfield immediately drove to the lot where he kept the welder, about five to six miles down the highway. He found that his lot had been broken into, and his welder stolen. Mayfield's business partner, Emil Stuart, had placed the welder in the lot on the afternoon of June 3, 1977. Neither man had given anyone permission to use the welder. According to Mayfield the welder was worth approximately $1,500.

Upon discovering the theft Mayfield telephoned the police, then drove back up Loop 408 in a fruitless search for his welder. Mayfield then went to the Duncanville Police Department to report the theft.

Meanwhile Duncanville police officer Jack Long had stopped appellant and Larry Little for a traffic offense. Appellant was driving his yellow pickup truck and was towing a Lincoln welder. Long called in the license number of the welder, E74700, as well as appellant's and Little's names. Nothing was reported concerning the welder, but Long was informed that Larry Little had an outstanding arrest warrant. Long detained Little, but allowed appellant to leave. Long took Little to the Duncanville police station.

Subsequently Mayfield arrived at the police station to report the theft. When Mayfield informed Long of the license number of his welder, Long recognized the number as the same one he had reported after stopping appellant. Appellant then arrived at the Duncanville police station to post bond for Little, and was arrested for the theft of the trailer.

Appellant claimed that he had not stolen Mayfield's welder, but instead had been towing a welder that he borrowed from a welding shop called Day and Night Welding. Appellant, a police officer, Mayfield, and Stuart went to Day and Night Welding where appellant pointed out the welder he claimed he had been towing. The welder was not Mayfield's.

The State's evidence was sufficient to show that appellant exercised control over Mayfield's welder on June 5, 1977, by towing it behind his pickup truck. Stuart's testimony showed that the welder could have been stolen no more than two days previous to the time that it was seen in appellant's possession. A presumption of a defendant's guilt of theft sufficient to sustain a conviction for that offense may arise from the defendant's possession of recently stolen property. To warrant such a presumption the possession must be personal, recent, and unexplained, and must involve a distinct and conscious assertion of right to the property. Rodriquez v. State, 549 S.W.2d 747 (Tex.Cr.App.1977); McKnight v. State, 399 S.W.2d 552 (Tex.Cr.App.1966). All these factors were established by the evidence. Furthermore, when appellant was first confronted with the accusation that he stole the welder, he gave a false explanation by asserting that he had not been towing Mayfield's trailer, but a different one. This also gives rise to an inference of guilt. Bowers v. State, 414 S.W.2d 929 (Tex.Cr.App.1967). See Prodan v. State, 574 S.W.2d 100 (Tex.Cr.App.1978); Rodriquez, supra. The evidence is sufficient to sustain the conviction.

Because the evidence is sufficient to sustain appellant's conviction beyond a reasonable doubt, a fortiori it is sufficient to support the revocation of probation by a preponderance of the evidence. Compare Hamm v. State, 513 S.W.2d 85 (Tex.Cr.App.1974).

Appellant urges that the court erred when it refused to grant his motion for new trial on the basis of newly discovered evidence. Larry Little refused to testify for appellant at trial, on the grounds that he might incriminate himself. Little was on probation, and had been indicted for the same offense as had appellant. Subsequent to appellant's trial the charges against Little were dismissed and he was continued on probation. After the dismissal of charges appellant filed his motion for new trial. Little testified at the hearing that on the morning of June 5, 1977 he and appellant had picked up a welder at Day and Night Welding and had taken it to appellant's aunt's house in Cleburne to do some welding. According to Little they left the house at 2:00 p. m. to return to Dallas. On the way they picked up two hitchhikers, whom they dropped off in Duncanville. After continuing on they were stopped by police and Little was arrested. Little...