Berg v. State

CLINTON, Judge,

dissenting.

In this case, the court of appeals found the evidence sufficient to support a conviction for theft. That evidence neither establishes that appellant participated in the initial acquisition of the property, nor that he exercised control over the previously stolen property knowing it was stolen by another.

In his petition for discretionary review, appellant correctly pointed out that a panel opinion of this Court has construed our present theft statute to proscribe only “two distinct” types of conduct — what would have essentially constituted “theft” and “receiving and concealing” under old Articles 14101 and 1430,2 Vernon’s Ann.P.C. (1925), respectively — focusing primarily on the manner in which the actor acquired the property. Casey v. State, 633 S.W.2d 885 (Tex.Cr.App.1982). In other words, appellant’s petition relies on the holding of Casey, supra, that V.T.C.A. Penal Code, § 31.03(a) and (b)(1),3

“requires [in addition to the express elements of the offense,] that the accused participate, either personally or acting as a party in the initial unlawful [actual taking] [4] of the property from its owner. See Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976).”

Casey, supra, at 887.

Appellant, like Casey, was indicted for conduct proscribed by § 31.03(a) and (b)(1), supra. Thus, he naturally argues in his petition for discretionary review:

“The facts of this case fall directly within the rule set out in Casey. Here, there *804is not one whit of evidence that in any way connects the Appellant to the burglary of the Complainant’s house either as an actor or a party. It is, in fact, undisputed, that Appellant had nothing to do with the initial appropriation of the diamond ring. Absent such proof, Casey makes it clear that the evidence is insufficient to prove a violation of § 31.03(b)(1) as alleged. [Emphasis original].”

The Assistant State Prosecuting Attorney contends that Casey should be overruled because, among other reasons, it places a burden on the State by adding an additional element to the constituents of theft which was not only uncontemplated by the Legislature, but is in fact directly contrary to the express intent of Chapter 31.

Thus the issue for review has been clearly drawn. The soundness of Casey — its rationale having not been tested by rehearing before the court en banc — was the question on which we granted review in this cause. But the majority opinion has wholly failed to address appellant’s contention, and in fact has reached a result in this case which is not attainable without overruling Casey.

I would address the question presented for review and in the doing expressly overrule Casey as the most unsupportable judicial assault on the new penal code to date. Because the majority does not, I dissent.

I.

QUESTION FOR REVIEW

The error of Casey is most graphically demonstrated in cases where the circumstances of the appellant’s acquisition of the property are unknown and unprovable. E.g., Mulchahey v. State, 574 S.W.2d 112 (Tex.Cr.App.1978). What was shown in Mulchahey, supra, was an exercise of control over several vehicles by the defendant, coupled with knowledge he did not have the respective owners’ consent and his intent to deprive the owners of the vehicles — just what the theft statute prohibits. V.T.C.A. Penal Code, 31.03(a). His claim on appeal —that the State proved neither that he initially took the vehicles nor that he knew they were stolen when he acquired them— was rejected on the basis that the statute does not require such proof.

Thus, if the reasoning and holding of Casey are correct, Ray Leroy Mulchahey has been wrongly convicted of theft and should be immediately released upon proper application. I venture to say, however, that no member of this Court would disagree that the evidence established Mulcha-hey committed a theft as contemplated by § 31.03(a).

The error of Casey is its focus on the manner of acquisition of property, a focus the Legislature removed from the theft statute in the 1974 penal code,5 then further refined in the 1975 legislative session.6 Just as it was recognized that the actor’s intent to “benefit himself or another” or to “withhold the property permanently” were not essential to commission of a theft, so too was it acknowledged that the “manner of acquisition” was inconsequential to the evil of a theft: the gravamen of theft, the conduct forbidden is in depriving the true owner of the use, benefit, enjoyment or value of his property, without his consent.

Thus, the varying misleading emphases on aspects of acquisitive conduct formerly proscribed under the old penal code were *805sifted out by the new, and a single offense was distilled from the common elements contained in each: clearly, if one exercises control over property knowing it is without the owner’s consent, and intending to deprive the owner of it, it matters not “how” the actor got the property, whether he intended to benefit himself or another, intended to “permanently” deprive the owner, etc.7

One of the single biggest problems faced by prosecutors under the old theft statutes was in proving “receiving and concealing” cases because the proof turned on whether the accused had knowledge of a circumstance surrounding his “receipt” of the property — that being that the property was stolen. Since this scienter is one not infer-able from the act of “receipt” of the property alone, there was often no way to convict “fences” or other persons dealing in stolen goods, even if the -proof clearly established a knowing nonconsensual possession of the property to the exclusion of the true owner with the intent to deprive the owner of the property.

Thus, there were at least two innovations in the new code designed specifically to assist in prosecuting such patently guilty persons: (1) the “exercise of control” feature of “appropriation” which dispensed with the necessity of a “receipt” of property and, perforce, knowledge it was stolen at that very moment;8 and, (2) in the event the prosecution could prove the actor had participated in numerous similar receipts of property which, in fact, was stolen, § 31.03(c)(1) allowed proof of those transactions to show knowledge of the property’s stolen status. See also V.T.C.A. Penal Code, § 31.03(c)(2H4).

“Few property transactions do not involve the acquisition of another’s property with intent to deprive him of it,” Committee Comment to § 31.03. Thus, the committee (and later the Legislature) recognized that what separates lawful acquisitive conduct from theft is a crucial “circumstance surrounding the conduct”9 — that the acquisition is “without the owner’s consent.” The crime of theft requires the “forbidden conduct” element of the offense10 (“exercise of control over property”) to be accompanied by this “circumstance surrounding the conduct,” and V.T. C.A. Penal Code, § 6.03(b), requires proof of the actor’s knowledge of that “circum*806stance surrounding the conduct:” that the conduct is “without the owner’s consent.” With this crucial feature, the actor’s acquisitive conduct is clearly “unlawful.”

It is logically apparent that one way to prove the actor had “knowledge” that his exercise of control over property was “without the owner’s consent” is to prove that at some point during his exercise of control he “knew it was stolen by another.” 11 Thus, “knowing the affected property was stolen by another” is merely a subset of “knowing it is without the owner’s consent.” Casey, however, treats these “circumstances surrounding the conduct” as mutually exclusive.12

Not only is such a treatment patently illogical in fact, but it also conflicts with the express legislative history of the statute:

“Section 31.03(b)(2) provides that it is ‘unlawful’ to ... exercise control over property the owner [sic] knows is stolen; thus the receiver is guilty of theft under Section 31.03. ‘Receiving’ is included out of an abundance of caution rather than out of necessity, because one who obtains or exercises control over property he knows is stolen does so [knowing it is] without the owner’s effective consent as clearly as when he physically steals the property himself”

Committee Comment to § 31.03.

Thus, it is clear that the general allegation that the conduct and accompanying mental state (appropriation with the intent to deprive) were done “unlawfully,” or even “without the owner’s consent,” would support a conviction for theft in which the proof established the actor’s “initial taking,” his “receipt knowing the property was stolen” or neither such mode of acquisition, so long as all elements of theft were proved. Section 31.03(b)(1) and (2) simply do not provide the “nature of the forbidden conduct;” instead, they are both only “circumstances surrounding the conduct,” which in no way constitute “acts or omissions” of the defendant. It follows that these provisions have evidentiary import only in terms of establishing the “unlawfulness” of the appropriation, and the defendant is not entitled to have them expressed in the State’s charging instrument as a matter of “form” under Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981) (Opinion on State’s Motion for Rehearing), much less substance.13

In sum, neither the rationale nor holding of Casey is supported by logic or legal authority; in fact, Casey flies in the face of the Legislature’s express purpose in consolidating theft offenses. It attempts to reduce the offense of theft to “two separate and distinct ways in which the offense could be committed” which, with deference, is nothing short of sheer fantasy. There are myriad “ways in which the offense could be committed;” but Casey attempts to elevate mere matters of proof to “distinct elements” comprising “two separate” offenses, then, adding insult to injury, it tacks on a new “element of the offense” (“initial actual taking”) to boot! Perhaps to some this simplifies things; to me it legalizes illegal conduct.14 There is cer*807tainly no principled reason, compelling or even weak, to revive the very problems the Legislature sought to eliminate in the new penal code, as well as create new ones. Yet that is the result accomplished by Casey. It should be overruled.

II.

SUFFICIENCY OF EVIDENCE

But since a majority of the Court does not see fit to examine, and necessarily then overrule, Casey, its holding should be applied equally to the appellant here. There is no evidence appellant participated, either personally or acting as a party in the initial actual taking of the diamond from its owner. Under Casey, he cannot be guilty of § 31.03(b)(1) theft without this proof. The majority opinion apparently would interpret the evidence as showing appellant was still “exercising control over” (“appropriating”) the diamond on July 17th when it was first proved he gained “knowledge it was stolen by another” from the diamond’s owner, Mrs. Bonham. Even if the evidence established this, under Casey such would constitute an offense only under § 31.03(b)(2) — a theory not alleged in the indictment. The evidence is insufficient under Casey any way it is measured.

I dissent.

ONION, P.J., joins.

. " Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking." (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

. "Whoever shall receive or conceal property which has been acquired by another in such a manner as that the acquisition comes within the meaning of the term theft, knowing the same to have been so acquired shall be punished in the same manner as if he had stolen the property."

. Section 31.03, supra, provides in part:

"(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property;
(b) Appropriation is unlawful if:
(1) it is without the owner's effective consent;
(2) the property is stolen and the actor appropriates the property knowing it was stolen by another.”

V.T.C.A. Penal Code, § 31.01(5), provides that, in the present context, "‘Appropriate' means: (B) to acquire or otherwise exercise control over property other than real property."

4.Though the author of Casey used the word “appropriation,” one only need go to the case he then cited, Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976), to see his intended meaning was "actual taking."

. The unlawful manner of acquisition of property was acknowledged to be the gravamen of other offenses such as robbery and burglaiy where obtaining property by force, violence or unlawful entry was seen to be the primary evil sought to be prevented, and thus the focus of those crimes.

. The original form of § 31.03(a) and (b) made a distinction between two types of alternative "forbidden conduct" elements of theft: “obtains” and "exercises control over" property. Both of these alternatives were removed by the 1975 amendment which substituted the single forbidden conduct element "appropriates." The definition of "obtain" contained originally in § 31.01(5) became part of the definition of "appropriate,” amending the same provision in 1975, effective September 1, 1975. Casey also scrupulously avoids attention to this clear manifestation of the Legislature's intent to remove the "manner of acquisition" from the offense of theft.

.Wholly ignored by the Casey panel is the unambiguous declaration by the Legislature that "theft constitutes a single offense superceding the separate offenses previously known as [among others] theft ... and receiving or concealing stolen property.” V.T.C.A. Penal Code, § 31.02.

Section 31.02 — like 31.01 and 31.03 — was adopted in 1973 as proposed by the State Bar Committee on Revision of the Penal Code, Final Draft 1970. That Committee explained its intent in consolidating all theft offenses in § 31.02:

"No part of the penal code has produced more confusion, more appellate litigation, and more reversals on [matters] unrelated to the actor’s guilt or innocence than the multitude of offenses proscribing criminal acquisitions of another's property. Although the theft offenses attempt to separate guilty from innocent acquisitions, ... their effect all too often is to embroil the courts in nice questions about the appropriateness of conviction under one offense label as opposed to another. The present distinctions ... are unnecessary for establishing the point at which acquisitive conduct becomes criminal...; they do, however, place unnecessary obstacles before conviction of the guilty.
For this reason, the committee decided to consolidate most theft offenses into a single, comprehensive offense aimed at the harm that accompanies the acquisitive conduct, however the acquisition is accomplished. * * * Theft is a single offense with a uniform culpable mental state, a uniform result, uniform penalties, and uniform defenses, all of which focus on culpability rather than, as under present law, whether the State is pursuing the defendant under the appropriate offense label”

Texas Penal Code: A Proposed Revision, Final Draft 1970, Committee Comment to § 31.02 [hereinafter Committee Comment].

. "[‘Exercising control’] covers not only purse snatching, shoplifting, and other thefts by strangers, but also receiving or concealing stolen property and the conduct of persons who possess another's property with consent but exercise their possessory rights in a manner that deprives the owner of the property.”

Committee Comment to § 31.03.

. See V.T.C.A. Penal Code, § 6.03.

. V.T.C.A. Penal Code, § 1.07.

. It simply cannot be argued with any logic that a person who exercises control over property he knows was stolen by another does not know his exercise is without the true owner's consent.

. The assertion in Casey at 886-887 that “the Legislature while creating only one offense provided two separate and distinct ways in which the offense could be committed" is not only semantically oxymoronic, but is also plain wrong as a practical matter.

. It is with great reluctance I have concluded that the Court’s opinion in Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977) (Opinion on Motion for Rehearing) is wrong. Indeed, a careful reading of that opinion reveals not even an attempt by the Court to justify its conclusion, and in fact a hopeless confusion of principles of "form" (notice) with "substance" (elements of offense).

.By adding an "element" to each of the supposedly two distinct ways to commit theft, much conduct falls between the cracks. E.g., Mulchahey, supra.

Furthermore, if only two of twelve old code theft offenses were successfully brought forward by the Legislature (notwithstanding the “attempt in the new code to consolidate” them, Casey, at 866), are the other ten now legal to commit? See § 31.02, supra.