# Brown v. State

> Court of Criminal Appeals of Texas · September 22, 1982 · 640 S.W.2d 275

URL: https://www.frixlaw.com/law-library/cases/9769623

## Case

- **Full name:** Thomas Chester BROWN AKA Thomas La Brae, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 22, 1982
- **Citations:** 640 S.W.2d 275; 1982 Tex. Crim. App. LEXIS 1019
- **Precedential status:** Published
- **Opinion:** Dissent by Teague
- **Judges:** Dally, W.C. Davis and Teague
- **Cited by:** 61 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769623

## How later opinions describe it (automated extraction)

- holding that "mere presence at the scene of a crime is insufficient to make a witness an accomplice"
- holding aggregation under section 31.09 creates one offense that cannot be severed

## Opinion text

TEAGUE, Judge,
dissenting.
The evidence is legally insufficient to support the jury’s finding that the appellant committed the multiple thefts pursuant to one scheme or continuing course of conduct. To the holding of the majority that it is, I respectfully dissent.
Because of the unique facts of this cause, the majority should, but does not, construe the statutory phrase “pursuant to one scheme or continuing course of conduct”, which phrase is set out in V.T.C.A., Penal Code, Sec. 31.09. I find from the few cases appealed to this Court which have concerned the application of Sec. 31.09, supra, that this Court has not given the bench and *281 bar of this State a legal interpretation and construction of the entire phrase “pursuant to one scheme or continuing course of conduct”. See Tucker v. State, 556 S.W.2d 823 (Tex.Cr.App.1977); Wages v. State, 573 S.W.2d 804 (Tex.Cr.App.1978); Chance v. State, 579 S.W.2d 471 (Tex.Cr.App.1979); 1 Turner v. State, 636 S.W.2d 189 (Tex.Cr.App.1982). Cf. Oliver v. State, 613 S.W.2d 270 (Tex.Cr.App.1981). 2 Today, however, because of the unique factual situation of this cause, the majority of this panel is squarely faced with construing the entire phrase “pursuant to one scheme or continuing course of conduct”, but it fails to do so. I agree with the majority that the evidence shows that the appellant committed multiple misdemeanor thefts. However, merely stating that appellant committed multiple misdemeanor thefts on the same day does not answer the following question: Are the facts that were presented in this cause legally sufficient to have warranted the jury to conclude that the multiple thefts occurred either pursuant to one scheme or pursuant to a continuing course of conduct? As noted, I find the facts are legally insufficient to warrant the finding that the multiple thefts occurred either pursuant to one scheme or pursuant to a continuing course of conduct.
V.T.C.A., Penal Code, Sec. 31.09, provides as follows:
When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense. [Emphasis Added]
The State in this cause, for jurisdictional purposes, alleged in the indictment that the appellant had, pursuant to one scheme and continuing course of conduct, committed multiple misdemeanor thefts and that the aggregate value of the items stolen exceeded $200. By the majority opinion, the total value amount of the items stolen was approximately $290.00. The trial court first instructed the jury that before it could find the appellant guilty of committing a felony offense it had to find that the appellant committed the alleged misdemeanor thefts, cf. Turner v. State, 636 S.W.2d 189 (Tex.Cr.App.1982), and thereafter instructed the jury in the application of the accusation paragraph of the charge that before it could find appellant guilty of committing a felony offense it had to find that the appropriation of the items of personal property “were obtained persuant [sic] to one scheme or continuing course of conduct.”
The phrase “in the continuing course of conduct” has been regularly defined by courts to mean more than an isolated instance. “It is a pattern of conduct composed of the same or similar acts repeated over a period of time, however short, which establishes continuity of purpose in the mind of the actor.” [Emphasis Added]. “To come within the classification of ‘course of conduct’ it must be shown that such conduct is a continuous practice as to constitute a regular course of conduct and an occasional instance does not establish such custom.” People v. Hotchkiss, 300 N.Y.S.2d 405, 406 , 59 Misc.2d 823 (Schuyler County Court N.Y.1969). See also Kopf v. Florida Real Estate Commission, 379 So.2d 1327, 1328 (D.Ct.App., Third Division, Fla.1980); Warkentin v. Kleinwachter, 27 P.2d 160 , 166 Okl. 218 (Okl.Sup.Ct.1933).
*282 The word “scheme”, as used in the statutory phrase, “appropriation of items of personal property ... pursuant to one scheme,” and in the context of the charging instrument in this cause, refers to a plot, plan, or system to commit the multiple misdemeanor offenses. The word “scheme”, by its usual and ordinary meaning, involves some connotation of planning and pattern or modus operandi. Fabian v. United States, 358 F.2d 187, 193 (Eighth Cir.1966). It means a plan of something to be done, a project, a plot or device for the accomplishment of an object, or a combination of various things according to a systematic plan. Jeronimo v. Murff, 157 F.Supp. 808, 815 (U.S.D.Ct.N.Y.1957). By the plain wording of the statute, the value of multiple misdemeanor thefts may be aggregated to the level of a third degree felony if the State alleges and proves that the appropriation of the items of personal property were obtained pursuant to one scheme and the items of property exceeded $200 in value. However, if the prosecution alleges that the appropriation occurred “pursuant to one scheme”, then it must prove that a design or plan was formed by the defendant to accomplish the purpose of appropriating the items of personal property. Moore v. State, 531 S.W.2d 140, 142 (Tex.Cr.App.1975); Seiffert v. State, 501 S.W.2d 124 (Tex.Cr.App.1973). See also Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).
By using the above definitions for the word “scheme”, and applying them to the facts of this cause, I believe it is improbable to infer that the appellant, when he committed the multiple misdemeanor thefts, did so pursuant to “one scheme”. However, because Sec. 31.09, supra, provides for an alternative method, “pursuant to a continuing course of conduct”, of permitting the State to aggregate the amounts obtained, it is necessary to address the following question: Were the items of personal property appropriated during a continuing course of conduct?
Appellant did not testify in this cause. The State’s evidence is centered upon the testimony of Benito Martinez, who was on the day in question appellant’s fellow employee. On the day in question, the appellant and Martinez were assigned to do yard work at the residence of one of the complaining witnesses, Ms. Middagh, a regular customer of the other complaining witness, Mr. Millen, the employer of appellant and Martinez. In addition to going to Mid-dagh’s residence, the evidence reveals that appellant and Martinez engaged in “frolic and detour” 3 on the day in question. First, they went to Middagh’s residence where appellant unlawfully took from inside the residence a suitcase, inside of which was a calculator, a set of electric rollers, a sewing machine, a hair dryer, jewelry, a $20 bill, and a $16 check. Without doing any yard work at the premises, appellant and Martinez then left Middagh’s residence. Appellant took Martinez to a restaurant where he left Martinez for approximately 30 minutes. When appellant later picked up Martinez at the restaurant, a red tool box, which belonged to Millen, and which had been in the truck, was gone. Appellant and Martinez then went to Juarez, State of Chihauhua, Republic of Mexico. In Juarez, Appellant sold to some friends Middagh’s sewing machine and a chain saw that belonged to Millen. Thereafter, appellant and Martinez went to a bar in Juarez and drank beer for *283 a period of time. Appellant then took Martinez home. Before they parted, appellant gave Martinez Middagh’s suitcase and also gave him $20. Appellant thereafter was arrested for driving his vehicle while intoxicated. Middagh’s calculator and hair dryer were recovered from the vehicle. The other items that were stolen were unaccounted for. Martinez testified that during the day in question he was unaware appellant had committed multiple thefts from Middagh and Millen. However, he testified he had an idea he was involved in the thefts. 4
Do the above facts establish that the items of personal property that had belonged to Middagh and Millen were unlawfully appropriated by appellant “pursuant to one scheme or continuing course of conduct?” I find they do not.
In the following discussion, I shall emphasize why there was not in existence any scheme prior to or during the time the thefts occurred, and will discuss why I believe the thefts did not occur pursuant to a continuing course of conduct.
Even with Martinez’ testimony, there is no evidence in this case that any scheme ever existed prior to or during the times when appellant committed the multiple misdemeanor thefts. At some point in time in the State of Chihuahua, Republic of Mexico, a scheme to dispose of some of the stolen property probably existed, but such a scheme, if it did exist, would be irrelevant in making the determination of whether a scheme existed at the time appellant unlawfully appropriated the items of personal property. In order for the jury to have correctly answered in the affirmative the question of whether or not the misdemean- or thefts occurred pursuant to “one continuing course of conduct”, it was incumbent upon the State to present to the jury legally sufficient evidence to establish that the acts of appellant were proof that he was acting in accordance to a certain modus operandi when he committed the multiple thefts. However, in this cause, other than the mere showing that the appellant randomly committed several acts, which resulted in him unlawfully appropriating the items of personal property, the State has failed to sufficiently establish any common characteristics in the acts of the appellant in unlawfully appropriating Middagh’s and Millen’s property. In light of what the word “scheme” and the phrase “continuing course of conduct” are ordinarily considered to mean, see supra, it is apparent to me that the jury, based upon the evidence presented to it, could have found that the appellant committed two separate misdemeanor thefts, but could not have correctly found that the items of personal property were obtained pursuant to one scheme or continuing course of conduct. To give the word and the phrase different meanings than as set out above would result in their being irrationally defined. The manner in which the complete phrase is set out in Sec. 31.09, supra, evidences an intent on the part of the Legislature to provide for a certain classification and punishment for the defendant who has committed multiple thefts in such a fashion as to evidence “a trademark-like quality” in how they were committed. See also the Practice Commentary regarding Sec. 31.09, supra; Collazo v. State, 623 S.W.2d 647 (Tex.Cr.App.1981). In this cause, we have dissimilar, not similar, acts of the appellant which brought about the commission of the misdemeanor thefts. In the Middagh theft, while lawfully inside the residence of Middagh, appellant appropriated, inter alia, a suitcase, a calculator that was inside the suitcase, and a sewing machine. These acts of appropriation occurred when appellant and Martinez removed themselves, along with Middagh’s *284 personal property, from inside of Middagh’s residence. See V.T.C.A., Penal Code, Sec. 31.01(5). Appellant’s acts inside Middagh’s residence and the appropriation of Mid-dagh’s personal property represent nothing more than those of a sneak thief. Because the appellant was originally in lawful possession of the items of personal property he subsequently appropriated from Millen, he could not have unlawfully appropriated those items of property until some point in time after he left Middagh’s residence. As to the theft of Millen’s property, the evidence only shows a misdemeanor theft by an employee, who was at the time of the theft, whenever that occurred, acting in the capacity of a trustee for his employer. Other than the commission of the thefts themselves, no common characteristics are shown to have existed. The majority, however, without delineating what the “scheme” or the “continuing course of conduct” of appellant was, holds that merely because random thefts are shown to have occurred on the same day, by one who acts in the one instance as a sneak thief and in the other as a thief of his employer’s property, that this is sufficient to establish either that 1) prior to the thefts, the appellant devised one scheme to steal property belonging to Middagh and Millen or 2) the thefts occurred pursuant to a continuing course of conduct. There is no evidence of a scheme devised by the appellant prior to going to Middagh’s residence and there is nothing to show that his acts of stealing from Middagh and Millen represent some form of a regular course of conduct or were duplicitious in nature. If the Legislature of this State had meant for Sec. 31.09, supra, to be applicable to the mere commission of multiple thefts it could have easily said so. Because it did not, and furthermore, because I find that the majority by its holding has implicitly applied a wrongful interpretation to the statutory phrase “pursuant to a scheme or a continuing course of conduct”, I respectfully dissent.
. Because of the conclusions I have reached concerning the meaning of the phrases “one scheme” and “continuing course of conduct”, I believe that this Court erred in Chance , Id., when it implicitly held that merely because the facts show that a defendant committed multiple thefts on the same day that this alone is sufficient to authorize invoking the provisions of Sec. 31.09, supra. By the express and clear wording of Sec. 31.09, supra, it is only “When amounts are obtained ... pursuant to one scheme or continuing course of conduct” that the amounts obtained may be aggregated. In sum, for the State to invoke Sec. 31.09, Id., it must show more than the fact that the defendant is a thief.
. By the facts as set out in Oliver , Id., the defendant stole two pistols from separate stores “on the same day, near the same hour and within a block or so of each other.” This, unquestionably, sufficiently shows that the two offenses occurred during “a continuing course of conduct”. See post.
. In Vol. 2, Sec. 268, at page 1382, Harper and James, The Law of Torts, it is stated:
“The currency of the terms ‘frolic’ and ‘detour’ in this connection is generally attributed to the language of Baron Parke in summing up to the jury in Joel v. Morrison, 6 Car. & P. 501, 503, 172 Eng.Rep. 1338, 339 (1834) (‘The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.’)
In general, see Y.B. Smith, Frolic and Detour, 23 Colum.L.Rev. 444, 716 (1923); William O. Douglas, Vicarious Liability and Administration of the Risk, 38 Yale L.J. 584 (1929); 1 Restatement of Agency Sections 228-237.”
. In light of the facts of the case, it is difficult for me to understand why Martinez was not an accomplice witness as a matter of law. See Art. 38.14, V.A.C.C.P. Nevertheless, the jury was instructed that it could not convict appellant unless it first found that Martinez was not an accomplice to the commission of the thefts by the appellant. Because the jury found appellant guilty, it is apparent that the jury did not believe that Martinez was an accomplice when appellant stole the items of property. Based upon this finding, it further negates why appellant was not acting pursuant to a scheme or acting pursuant to a continuing course of conduct when he stole the property.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769623. Public record. Not legal advice.