In the majority's libretto, the fat lady does not get to sing because an opera is never over. The majority acknowledges DeAlmanza completed the necessary elements of theft when she took possession of the stolen property from the officer.See majority at 781. The majority narrowly interpretsBarnes, inappropriately interprets a clear and unambiguous statute, and impermissibly adds language to that statute. The majority determines the legislature in theft offenses intended at a minimum to include within the meaning of "used in the commission of" the means used to transport stolen property away from the offense's location. The majority then concludes because DeAlmanza used her pickup to transport stolen goods from *Page 782 the offense's location, the State established as a matter of law that she used the pickup in the commission of the theft offense. I believe the majority's reasoning is without foundation and contrary to existing law. I respectfully dissent.
SUMMARY JUDGMENT — STANDARD OF REVIEW In addition to the rules set out in the majority's opinion, I set out certain other rules that apply to this case.
When the defendant is the movant, summary judgment is proper only if the plaintiff cannot, as a matter of law, succeed on any theory pleaded. See Peirce v. Sheldon PetroleumCo., 589 S.W.2d 849, 852 (Tex.Civ.App. — Amarillo 1979, no writ). The defendant can prevail by conclusively showing there is no genuine issue of fact about at least one factual element of each cause of action pleaded by the plaintiff. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). A defendant may also prevail by conclusively establishing every factual element of an affirmative defense. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).
When we review the trial court's grant of a summary judgment, we apply the following standards:
See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).(1) The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
(2) In deciding whether there is a disputed material fact issue precluding summary judgment, we must take evidence favorable to the nonmovant as true.
(3) We must indulge every reasonable inference in favor of the nonmovant and resolve any doubt in its favor.
THE FORFEITURE ACTION 1. The Applicable Law a. Forfeiture of Contraband Contraband is subject to seizure and forfeiture. TEX.CODE CRIM.PROC.ANN. art. 59.02(a) (Vernon Supp. 1992). "Contraband" means any property, including real, personal, tangible, or intangible, used in the commission of any felony under Chapter 31 of the Penal Code. See TEX.CODE CRIM.PROC.ANN. art. 59.01(2)(A)(ii) (Vernon Supp. 1992).
b. Theft A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of the property. TEX.PENAL CODE ANN. § 31.03(a) (Vernon 1989). Appropriation of property is unlawful if property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another. TEX.PENAL CODE ANN. § 31.03(b)(3) (Vernon 1989). "Appropriate" means to acquire or otherwise exercise control over property other than real property. TEX.PENAL CODE ANN. § 31.01(5)(B) (Vernon 1989). Appropriation occurs when one person unlawfully exercises control over property lawfully belonging to another. SeeFreeman v. State, 707 S.W.2d 597, 605-06 (Tex.Crim.App. 1986).
c. Statutory Construction Statutory construction begins with an analysis of the statute. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983). If the disputed statute is clear and unambiguous, extrinsic aids and rules of statutory construction are inappropriate. Ex parte Roloff, 510 S.W.2d 913, 915 (Tex. 1974). In such circumstances, we must give the statute its common, everyday meaning. Cail, 660 S.W.2d at 815.
A court may not judicially amend a statute and add words that are not implicitly contained in the language of the statute.Lee v. City of Houston, 807 S.W.2d 290, 294-95 (Tex. 1991); Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 762 (Tex.App. — Dallas 1991, writ denied). We can insert additional words into a statutory provision only when it is necessary to give effect to the clear legislative intent.See Hunter v. Fort Worth Capitol Corp., 620 S.W.2d 547, *Page 783 552 (Tex. 1981). We may not, under the guise of statutory construction, amend a statute by adding words to it, no matter how desirable such additions might seem. In theInterest of S.H.A., 728 S.W.2d 73, 83 (Tex.App. — Dallas 1987, no writ). We may not usurp the legislature's power by reading language into a statute. Goldman v.Torres, 161 Tex. 437, 341 S.W.2d 154, 158 (1960).
2. The State's Contentions The State argues that DeAlmanza's pickup truck is contraband subject to forfeiture as a matter of law. The State contends the summary judgment evidence showed the offense was ongoing when the police arrested DeAlmanza in the pickup truck. The State contends this is because DeAlmanza was transporting and appropriating the property to sell to her brother-in-law to "further deprive the owners of the property."
3. DeAlmanza's Contentions DeAlmanza argues the pickup truck cannot be contraband as defined under the statute because she did not use it in the commission of any felony. DeAlmanza argues the felony was complete when she took the stolen property from the officer.
4. Material Facts Not in Dispute Both parties moved for summary judgment in the trial court. DeAlmanza based her summary judgment on the facts stated in the affidavits the State submitted to support its summary judgment. DeAlmanza adopts the State's facts and argues that based on the undisputed facts, the question is one of law for the court. When, as here, the parties do not disagree on the material facts, summary judgment is appropriate. See Gaines v.Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962).
THE ISSUE The issue is whether theft is a continuing offense. If it is, DeAlmanza used her pickup truck in the commission of a felony, and the pickup was contraband subject to forfeiture. If theft is not a continuing offense, the pickup was not subject to forfeiture.
APPLICATION OF THE LAW TO THE FACTS 1. The Majority's Contentions The State argues the words this Court needs to interpret are "used in the commission of . . ." found in Chapter 59 of the Texas Code of Criminal Procedure.
The majority proceeds to apply rules of statutory construction to ascertain the legislature's intent under the forfeiture statute. The majority chooses to construeBarnes narrowly and to reject its teaching for any purpose other than determining the triggering of limitations in a theft case. See Barnes v. State, 824 S.W.2d 560, No. 919-90 (Tex.Crim.App. 1991).
The majority agrees with the State. The majority finds theft a continuing offense and orders the pickup forfeited. I cannot agree.
2. Construction of the Forfeiture Statute No one, including the majority, asserts the statute is ambiguous. Nor do I find the statute in need of judicial construction. We should enforce the statute as interpreted by its express, clear, and unambiguous language. SeeCail, 660 S.W.2d at 815.
We must view the words "use" and "commission" in context and construe them according to rules of grammar and usage. TEX.GOV'T CODE ANN. § 311.011(a) (Vernon 1988). "Use" may have a number of meanings when it is employed as a verb. For example, "use" is defined as: to put into action or service; have recourse to or enjoyment of; employ; to carry out a purpose or action by means of; make instrumental to an end of process; apply to advantage; turn to account; utilize.See Patterson v. State, 769 S.W.2d 938, 940-41 (Tex.Crim.App. 1989). "Commission" means the act of committing, performing, or doing (as a crime, misdeed, or other offense). See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 457 (1981).
*Page 784 As the majority recognizes, "used in the commission of" in this case means the pickup was contraband if it was property utilized or employed to achieve the felony theft. The majority also recognizes that DeAlmanza completed the necessary elements of felony theft the minute she took possession of the stolen property from the officer. See majority, at 781;Rider v. State, 567 S.W.2d 192, 196 (Tex.Crim.App. [Panel Op.] 1978).
3. Interpretation of Barnes The majority contends we must limit Barnes to determining whether theft is a continuing offense for the purpose of triggering the statute of limitations. The majority contends Barnes's teachings do not apply in determining use in the commission of an offense for Chapter 59. The majority asserts using Barnes as authority in this case renders the legislature's enactment of section 59.02 a useless act. The majority concludes the legislature must have intended that "used in the commission of" have a broader meaning than set forth in Barnes. I cannot agree to limit Barnes in this manner.
In Barnes, the State's contention was similar to the State's and the majority's contention in this case. That is, we should construe theft as a continuing offense. The Court of Criminal Appeals noted our legislature did not designate theft as a continuing offense. Barnes, at 562. The court noted when every element of a crime has occurred, the crime is complete. The court specifically held that theft by exercising control is committed once possession of property becomes unlawful. See Barnes, at 562. The court stated it had never construed acquiring or otherwise exercising control over property as an invitation to turn theft into a continuing offense and declined to do so in Barnes. See Barnes, at 562; TEX.PENAL CODE ANN. § 31.01(5)(B) (Vernon 1989). The clear import of Barnes is that theft is not a continuing offense. The offense is complete when the accused takes possession of the stolen property.
Based on its narrow interpretation of Barnes, the majority then undertakes an analysis to determine the legislature's intent in the forfeiture statute. To reach a desired result, the majority determines the legislature, in the instance of theft, intended at a minimum to include within the meaning of "used in the commission of" the means used to transport the stolen property away from the location of the offense. The majority's endeavor is both inappropriate and improper. The statute's language is clear and unambiguous. Extrinsic aids and rules of statutory construction are inappropriate. Cail, 660 S.W.2d at 815. The majority may not judicially amend the statute and add words not implicitly contained in the language of the statute. SeeLee, 807 S.W.2d at 295. Under the guise of liberal construction, the majority usurps legislature's power by reading into a statute a provision that is not there.Goldman, 341 S.W.2d at 158.
In this case, DeAlmanza used the truck to transport the stolen property away from the location of the offense. As the majority concedes, her purpose for transporting the stolengoods was to sell them so she could finish paying for them. The theft statute under which the State charged DeAlmanza does not require a sale for the theft to be complete, much less that any money be paid before the theft is complete. As a matter of law, all the necessary elements of the theft were complete when DeAlmanza took possession of the property from the officer. Barnes, at 562; Rider, 567 S.W.2d at 196. See also Freeman v. State, 707 S.W.2d 597, 605-06 (Tex.Crim,App. 1986); Senter v. State,411 S.W.2d 742, 745 (Tex.Crim.App. 1967).
CONCLUSION In my view, the fat lady sang when DeAlmanza took the stolen property from the officer on the front porch of her house. The opera was over. The offense was complete. She did not use her pickup in the commission of the offense. The pickup truck was not contraband as defined by the statute. I would overrule all the State's points of error and affirm the trial court's judgment. *Page 785