Chavez v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BENAVIDES, Judge.

Appellant was convicted of theft and his punishment assessed at confinement in jail for a period of one year and a fine of $1,000. The Amarillo Court of Appeals affirmed in an unpublished opinion, holding that unexplained possession of recently stolen property is sufficient circumstantial evidence of guilt to sustain conviction for theft under an information charging that the accused received property knowing it was stolen by another. Chavez v. State, Tex.App.—Amarillo, Cause No. 07-91-0010-CR, delivered August 27, 1991. Appellant, relying on opinions such as Hynson v. State, 656 S.W.2d 460 (Tex.Crim.App.1983) and Muniz v. State, 663 S.W.2d 660 (Tex.App.—Corpus Christi 1983), maintains that the rule of recent unexplained possession does not apply in cases of receiving stolen property. We granted discretionary review to consider whether the Court of Appeals erred in failing to apply the rule of Hynson in this case. Because a proper application of the rule in Hynson is necessarily dependant on its continued vitality, we necessarily examine the impact of our more recent decision in McClain v. State, 687 S.W.2d 350 (Tex.Crim.App.1985) in resolving the issues at hand.

I.

On May 21, 1990, Carl Pelphrey reported to Plainview police that several items from his shed were missing, among them a lawnmower, a weedeater, and a child’s bike. Several days later, Crimestoppers, a weekly bulletin in the Plainview newspaper, reported the theft. Soon after, the police received an anonymous phone call that Appellant had been seen carrying such property into the apartment of his common-law wife. The caller also stated that she had seen the property inside that apartment on two later occasions.

Based on this information, and their knowledge that Appellant lived near the complainant for a time, the police obtained a search warrant for his wife’s residence. There, they discovered all of the property described by the caller and reported stolen by the complainant. Appellant at first denied that the items belonged to him, but he eventually admitted that they were his without explaining how he acquired them.

II.

Our decisional law has long permitted the conviction of a person for theft if the evidence shows him to have been found in possession of recently stolen property without offering an explanation inconsistent with guilt when first called upon directly or circumstantially to do so. Sutherlin v. State, 682 S.W.2d 546 (Tex.Crim.App.1984). Although often denominated a presumption *588in our earlier opinions, the rule merely states conditions under which reviewing courts may regard the evidence as sufficient for a rational finding of guilt. Hardesty v. State, 656 S.W.2d 73, 76-77 (Tex.Crim.App.1983). This rule of sufficiency is necessarily based upon a belief that those who steal property usually remain in possession of it for some time afterwards and that persons acquiring property honestly during such an interval are typically willing to explain how they came by it.

We have been disinclined, however, to apply the same rule when evaluating sufficiency of the evidence to prove receipt of property, knowing it to have been stolen by another. Under such circumstances, we have not thought it probable enough for criminal conviction that those who receive property from a thief usually know that it was stolen by him. Accordingly, our decisions hold that more proof than the mere circumstance of recent, unexplained possession is required to sustain a conviction in such cases. Hynson v. State, 656 S.W.2d 460 (Tex.Crim.App.1983).

Dissimilar treatment of these related evi-dentiary problems would not have seemed remarkable until 1985, when it was discovered that consolidation of theft offenses by the latest revision of our Penal Code had effectively eliminated any erstwhile distinction between theft and receiving stolen property. McClain v. State, 687 S.W.2d 350 (Tex.Crim.App.1985). Under the 1925 Code, those crimes were proscribed by different statutes, but they now appear as subdivisions of the same general theft law. Accordingly, we held in McClain that “knowing the property possessed ‘was stolen by another’ is merely a subset of knowing the possession is ‘without the owner’s consent.’ ” 687 S.W.2d at 354. To plead theft, therefore, the State has only to allege that the accused appropriated property unlawfully with intent to deprive the owner of it. The manner in which he came to possess it, whether by initially taking it from the owner or by subsequently receiving it from someone who did, is not an essential element of theft under current law.

Today, evidence sufficient to show an accused exercised control over property without consent of the owner, intending to deprive him of it, is always enough to prove theft. Evidence of various kinds may serve the purpose. Receiving property from another, knowing it to be stolen by him, establishes the offense because it is tantamount under McClain to a knowing exercise of control without consent of the owner. Unexplained possession of recently stolen property also establishes the offense, because it has long been considered sufficient to prove the same elements. And now, because the receipt of stolen property is no longer an offense requiring proof of different statutory elements, it follows that proof of unexplained possession is also sufficient for conviction in eases where the accused in fact received the stolen property from someone other than the alleged owner. To the extent that Hynson held otherwise, it was overruled in McClain by necessary implication.

Nevertheless, while it is no longer necessary to plead the receipt of property knowing it was stolen by another, it is clear that an actual pleading of these matters does commit the State to prove them at trial. Under McClain, the knowing receipt of stolen property is a subset of appropriation without effective consent. Pleading it, therefore, represents a more specific allegation of that which it is necessary to prove in any case. And our law is well settled that unnecessarily specific allegations of this kind are hot merely surplus-age, but must be proven to sustain conviction. Whetstone v. State, 786 S.W.2d 361, 364 (Tex.Crim.App.1990); McWilliams v. State, 782 S.W.2d 871, 873-874 (Tex.Crim.App.1990), and cases cited therein. Certainly this is true where, as here, the jury was in fact instructed that it might not convict without finding such elements to be true beyond reasonable doubt. See Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984). The impact of Hynson under these circumstances, and the extent to which it survives McClain, is that unexplained possession of recently stolen property is not sufficient proof of theft in any case where *589the State is required by its pleadings specifically to demonstrate that the accused received property, knowing it was stolen by another. Because the Court of Appeals held otherwise, we sustain Appellant’s first two grounds for review.

The State, anticipating this result, argues that the Court of Appeals, although purporting to apply the unexplained possession rule, nevertheless actually relied upon other evidence which, in the aggregate, was sufficient for conviction when taken together with the circumstance of unexplained possession. See Hardesty v. State. That may very well be true. If it is, the Court of Appeals will have a chance to say so on remand.* Meanwhile, for its misplaced reliance on the rule that unexplained possession of recently stolen property is sufficient for conviction, we reverse its judgment and remand for reconsideration in a manner not inconsistent with this opinion.

MILLER and MALONEY, JJ., concur in the result. OVERSTREET, J., dissents.

We also initially agreed to consider Appellant’s fourth ground for review, complaining of certain jury instructions at trial. However, after further study, we are of the opinion that review was improvidently granted on this ground. We, therefore, dismiss Appellant’s fourth ground for review, implying no disposition on the merits whatsoever.