Gill v. State

CLINTON, Judge,

dissenting.

The rule of law applied by the Court in Rubio v. State, 121 Tex.Cr.R. 621 , 50 S.W.2d 294 (1932), and relied on by the court of appeals, Gill v. State, 852 S.W.2d 7 (Tex.App.—Waco 1993), is well founded. 1 It has *50 been followed by the Court in, e.g., Hamilton v. State, 122 Tex.Cr.R. 424 , 55 S.W.2d 820 (1933). 2

The majority argues that “the analysis utilized by [the Rubio court] was flawed and inconsistent with more recent precedents.” Opinion at 49. 3 However, none of the three cases examined in the majority opinion, at 48-49, even purport to overrule or “disavow” the rule followed in Rubio . They will be analyzed seriatim. As is true of most “recent possession” cases, the predicate for an analysis is the theory of prosecution and the conclusion is essentially factbound. See, e.g., Williams v. State, 104 Tex.Cr.R. 58 , 282 S.W. 230 (1926); see also McKnight v. State, 399 S.W.2d 552 (Tex.Cr.App.1966).

Lucas v. State, 482 S.W.2d 236 (Tex.Cr.App.1972), involved an “inside job” of theft of certain property in a Fort Worth Spartan’s Department Store, including money taken from a coin operated machine, suitcases loaded with “fifty some” cartons of cigarettes and 200 packages each containing six to eight spark plugs; it was committed during closing hours after store manager Weaver admitted Hamon Shaw, a custodial employee, and one Aurelious Singleton, the accomplice, who was pretending to “help” Shaw cleanup; as was his custom, Weaver locked them inside and left intending to return the following morning to let them out. Instead, at an early morning hour he was called to the store, police were there and Shaw told him that Singleton had drawn a gun and tied him up. An inventory revealed the missing property.

Later that same day in San Antonio, acting on a tip a local police officer stopped the car being driven by Singleton, in which Lucas was a passenger in the front seat and a woman companion, Sarah Houston, was on the back seat beside a stolen luggage piece filled with nine sets of spark plugs; some 200 plugs were in the trunk. Neither heroin nor stolen cartons of cigarettes were found. Id., at 237-238, 239-240 . 4

In deciding whether the accomplice testimony was sufficiently corroborated, the Court practically dismissed authorities cited by the parties, believing Alexander v. State, one of the cases relied on by the majority *51 here, was more nearly in point, presumably because early the next morning alter a convenience store had been burglarized and 33 cases of beer were missing, Lucas and the accomplice were found asleep in the latter’s car along with 21 cases of beer, at least one of which was identified as belonging to the store. Id., at 239 . The closest the Court came to the question at issue was in rejecting an argument based on McKnight v. State, 399 S.W.2d 552 (Tex.Cr.App.1966). 5 The Court treated McKnight vis a vis Lucas, and then concluded:

“Appellant argues McKnight, supra, for the proposition that appellant did not exercise exclusive control over the stolen merchandise. In McKnight, there was joint control of a budding where the stolen goods were temporarily stored. In the instant case, there was a piece of stolen luggage on the back seat of the ear with a Spartan tag on it filled with stolen spark plugs. The fact that Singleton claimed ownership of the stolen merchandise and the car in which they were riding at the time of the arrest does not bring this case within the holding of McKnight. In Alexander, the accomplice was shown to be the owner of the car.

* ⅜ * * ⅜ ⅜

The arrest of appellant with accomplice the afternoon following the early morning theft, the placing of the accomplice in the store where the crime took place the night before, the presence of stolen merchandise on the back seat of the car was as well as in the trunk of the car in which appellant was arrested provide the combined and cumulative weight sufficient to provide facts tending to connect the appellant with commission of the crime. See Cherb v. State, Tex.Cr.App., 472 S.W.2d 273 . We find the evidence sufficient to corroborate the testimony of accomplice.”

Id., at 240. 6

In Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971), testimony of two men, the bar *52 owner and an investigating police officer, showed only that a crime had been committed, i.e., the facts recited in items (1) and (2) by the majority, opinion, at 48. Id., at 279 . The Court narrowed the available corroborative testimony implicating Cherb, viz:

“The testimony which may be considered showed that appellant left the apartment early in the morning with the other boys, that he returned with them and later handed a ‘First National Bank’ bag to one of the girls and told her to count it, that it contained coins, and that later appellant hid the money when a man came to the door [and later removed it from the hiding place].”

Id., at 280, 281 . While it is true, as the majority says, that the Court held “the non-accomplice evidence sufficient to satisfy the accomplice witness rule,” opinion, at 48, it seems perfectly plain that upon returning to the apartment with the accomplice, Cherb personally possessed and exercised actual care, custody, control and management over the bag of coins, within contemplation of the rule followed in Rubio . Thus there were considerably more incriminating facts tending to connect him with the burglary than mere presence with the accomplice after the offense. Cherb, at 281.

Alexander v. State, 170 Tex.Crim. 282 , 340 S.W.2d 493 (App.1960), which the Lucas court found more nearly in point than other cases cited by the parties, ante, at 48, involved yet another nighttime burglary of a closed and locked store from which thirty-three cases of three different brands of canned beer were missing. The prosecution pursued the theory of unexplained possession of recently stolen property, and corroboration of accomplice testimony as well. Id., 340 S.W.2d at 494 . It proved circumstances of the burglary and the daytime arrest of Alexander and one Anderson, his co-indictee. They were found asleep in an automobile sitting in the middle of a street with lights and motor running; both had a strong odor of alcohol on their breath; as well as a lug wrench, twenty one cases of beer of the same brands were found, one of which was identified as coming from the store. Id., at 493-494. 7

The Court found the evidence sufficient to sustain the conviction for burglary. The identified case of beer was “found in possession of appellant and his companion,” and that constitutes proof of “unexplained possession of the recent stolen property” sufficient to sustain the conviction, citing Bernadett v. State, 166 Tex.Cr.R. 621 , 317 S.W.2d 747 (1958). 8 Furthermore, evidence of possession of recent stolen property was sufficient to corroborate testimony of the accomplice and, thus, authorized the jury to convict on that basis, citing O’Mary v. State, 118 Tex.Cr.R. 78 , 43 S.W.2d 95 (1931). 9 340 S.W.2d, at 494 .

Since the three eases relied on by the majority, the Court has decided countless others, at least some of which have adhered to the rule of law applied in Rubio and its followings.

For example, in Nelson v. State, 542 S.W.2d 175 (Tex.Cr.App.1976)—just four years after the Court decided Lucas v. State, supra — a unanimous Court concluded the evi *53 dence was insufficient to support a conviction for burglary of a building and arson (burning the same building); the State relied on the fact that an Eisenhower Medallion taken in the burglary was discovered within hours thereafter “within three to four feet from Appellant as he stood in an open, outside area with his co-indictee approximately eight to nine feet from the Medallion.” Id., at 175. After reviewing all the evidence and pertinent law, the Court posed the question and answered in favor of Nelson.

“In the instant ease, appellant was shown merely to be in the proximity of the medallion. There is no evidence that appellant had any connection with, control of, or possession of the stolen property when it was found. See McKnight v. State [supra]; cf. Cherb v. State, supra. Further, the record reflects that the items taken from the community store front facility were found in the home of the accomplice witness, not in the home of the appellant.

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The record is devoid of any additional evidence of an inculpatory nature tending to connect the accused with the commission of the offense[s] ..., such as being in the company of the accomplice near the scene of the crime at the time of its commission at an unusual hour, flight, or actual possession of stolen property. See Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968).”

Id, at 177. 10

Since the three cases embraced by the majority are bracketed by predecessors to Rubio and its followings, they do not necessarily constitute “sound precedent” that must be followed, particularly when none even notices much less purports to overrule weightier germane precedent still extant. To pick and choose from many decisions those few that lead to a desired result demonstrates “a [lack of] respect for precedent [that] is, by definition, indispensable.” Compare majority opinion, at 49.

It seems to me that the majority is obliged to explain why it causes the Court to muddle an otherwise fairly well settled area of “recent possession” law. Because it does not I must dissent.

OVERSTREET, J., joins.

. To connect an accused with stolen property in a place where others are present, some admittedly connected with the theft with which he is charged, there must be independent evidence showing that he had "exclusive personal possession” of the property in question. Rubio v. State, supra, 50 S.W.2d at 295 . As the Court then explained:

*50 "... The presumption that it was in his possession or under his control from his presence in the place where it was found would not, under the circumstances found in the record, overcome the presumption of innocence. The law touching inference to be drawn from the finding of stolen property where others besides the one accused of theft of property are dwelling, in the absence of some circumstance fixing the identity upon the accused as the possessor, is discussed at some length [in cases cited].”

Id., at 295-296.

.Considering the State’s contention on motion for rehearing that accused was found in possession of properly which had been acquired in the commission of the offense of burglary, the Court confirmed its original conclusions that the property was not sufficiently identified and because the evidence shows simply that "he was present in a room with other parties, among them the accomplice,” accused was not shown to have been in possession "in such manner as to affect him as the possessor of recently stolen property." The Court pointed out:

"... The articles were not in the personal possession of the appellant. They were in a room occupied by the appellant and others. See Rubio v. State [supra].”

Id., 122 Tex.Cr.R. 424 , 55 S.W.2d at 822 . (All emphasis here and throughout this opinion is mine unless otherwise indicated.)

. In asserting its belief “that our holding in Ru-bio was correct” but the analysis "flawed,” the majority fails to take into account that the State itself generated the issue to be resolved. It contended the requisite corroboration was met “by evidence showing that the appellant was in possession of a part of the stolen property.” The court resolved that issue upon its determination that "it was essential that it be made clear that the car wheel and tire were in his possession;” after reviewing the “non-accomplice evidence” outlined in opinion, note 6, at 49, which, curiously enough, appears to have come as much if not more from Rubio himself as from State’s witnesses connected with the offense being in the same place, the Court held the evidence failed to show that "appellant had exclusive possession of the automobile and tire in question.” Rubio, 121 Tex.Cr.R. 621 , 50 S.W.2d at 295 .

. As Singleton told it in court, Lucas initiated and was a party to a rather elaborate plan to accomplish the job, his role being to drive them to the store in Singleton's car, drop off Shaw and Singleton, return later upon the latter’s telephone call and help load the stolen "stuff" into the car, leaving Shaw inside taped up and tied to a chair. Instead of meeting Shaw later, as planned, they bought heroin in Fort Worth and drove to San Antonio where they sold some cigarettes; they were on their way with a female companion to buy more heroin when they were stopped and arrested. Id., at 237-239.

. McKnight was charged with theft of a motor stolen from a farm; the motor was found in a building allegedly rented by him. The theory of prosecution was that his "possession” of that recently stolen property, added to testimony of the accomplice witness, one James Firestone, to the effect that he and McKnight had stolen the motor and two others from farms in the area and ultimately placed them in the building, was sufficient to sustain the conviction. Id., at 553. The Court applied the rarely fully articulated rule governing "recent possession” cases, viz:

" ‘To warrant an inference or presumption of guilt from the circumstance alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.’ 5 Branch's Ann. P.C., Sec. 2650, and cases collected. See also Frazier, 98 Tex.Cr.R. 411 , 227 S.W. 324 .”

Id., at 555. See also Grant v. State, 566 S.W.2d 954, at 956 (Tex.Cr.App.1978); Crain v. State, 529 S.W.2d 774, at 775-776 (Tex.Cr.App.1975), and collected cases.

Discounting the accomplice testimony, the Court concluded the evidence was insufficient to prove that McKnight was in possession of recently stolen property and, there being no other evidence tending to connect him with commission of the theft, the Court found the State failed sufficiently to corroborate the accomplice testimony.

"... The circumstantial evidence, viewed in the perspective most favorable to the state, shows only that appellant exercised joint control of the premises where the stolen property was temporarily stored, and there is no evidence that appellant asserted any control over the stolen property or that he was ever aware that the motor was stolen.”

Id., at 555. Although not mentioning Rubio , the Court does cite a following, Hamilton v. State, supra. Ibid.

. While Weaver’s testimony placing the accomplice Singleton in the store where the crime took place may be corroborative of Singleton’s own testimony that he was there and participated with Shaw in the offense, see the correct observations made by Presiding Judge Onion in his dissenting opinion to the effect that such testimony has no bearing on sufficiency of corroboration regarding accused because not incriminating evidence tending to connect Lucas with the crime in that it "simply does not meet the test, [footnote omitted].” Id., at 243.

That leaves in the analysis only factors of arrest and presence of stolen merchandise in the car driven by Singleton with two passengers: Lucas in the front seat and Houston in the back with the bag full of spark plugs. There is no independent evidence, however, showing where or when Lucas and Houston first encountered Singleton and entered his car, whether either became aware that bag and contents in it and in the trunk were stolen property, and that Lucas ever made a "distinct and conscious assertion of the property,” as required by, inter alia, McKnight, supra. See also Crain v. State, 529 S.W.2d 774, at 776 (Tex.Cr.App.1975) (quoting Hayes v. State, 464 S.W.2d 832, at 833 (Tex.Cr. *52 App.1971)) (mere joint control with others will not warrant an inference of guilt; test is whether accused asserts ownership over stolen property).

. As a witness for the State, Anderson recounted how he and Alexander broke into the place and the latter used the lug wrench to break the lock on the ice vault, admitted taking cases of beer and then their driving around in his car until he went to sleep, only later to be awakened by the arresting officer. Id.., at 494.

. Bemadett v. State, supra, is a burglary case in which accused was convicted on the theory of unexplained possession of recently stolen property, shown to be in his exclusive personal possession; there was no accomplice.

.O'Mary v. State, supra, is a conviction for burglary of a railroad freight car; an accomplice testified. The opinion does not summarize his testimony, but says there was ample evidence to corroborate it, viz:

"... The alleged stolen property was found in appellant’s house and in his possession a very short time after same was taken. This of itself in many cases is held to afford not only corroboration but to be sufficient proof to sustain a verdict of guilty of burglary, [citations omitted].”

Id., at 96.

. More recently it was followed by the court of appeals in Edwards v. State, 649 S.W.2d 710 (Tex.App.—Tyler 1983), no PDR. After reviewing the evidence the court applied the law, viz:

"... Thus we conclude that not only did the State fail to provide evidence establishing the appellant's exclusive or joint possession and control of the fruits of the burglary of the Pea Patch, but failed to produce any evidence tending to connect him to the commission of the burglary of the Pea Patch. The Court of Criminal Appeals in Rubio v. State, [supra], held that corroborating testimony regarding possession by an accused of recently stolen property must show exclusive possession by the accused. Such is not shown by this record. The mere presence of the appellant in the company of [an accomplice] shortly after the commission of the offense is not in and of itself sufficient corroboration to support the conviction in this case. Meyers v. State, 626 S.W.2d 778 (Tex.Cr.App.1982).”

Id., at 712.