Hanna v. State , 1977 Tex. Crim. App. LEXIS 952 ( 1977 )

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of theft of property of the value of over $200.00; the punishment, which is enhanced by a prior felony conviction, is imprisonment for 15 years.

The appellant asserts that the evidence is insufficient to sustain his conviction and that the trial court improperly submitted a charge on the “law of principals” and conspiracy. We first consider the appellant’s ground of error concerning the insufficiency of the evidence. It was alleged in the indictment that on July 14,1975, the appellant stole one 1974 Chevrolet automobile of a value of over $200.00 from George Hucka-bay.

George Huckabay, the owner of Hucka-bay Chevrolet Co., testified he did not give consent for the appellant to take the automobile which had been stolen.

Leburn T., also known as “Sonny” Ingram, the used car manager for Huckabay Chevrolet Co., testified that on July 14, 1975, a 1974 two door Chevrolet Nova automobile was missing from the Huckabay lot. The missing automobile was bronze or brown and had a value of $2,650.00. Ingram did not give consent for the appellant to take the automobile. He reported that the automobile had been stolen to an officer of the Midland Police Department whose name he did not remember. He gave the officer to whom he reported the loss a full description of the missing automobile including the vehicle identification number and license registration number. However, Ingram in his testimony did not say what the vehicle identification numbers and the registration license plate numbers were that he gave the officer. The missing automobile was returned to the Huckabay lot later in the afternoon on July 14, 1975. When returned, the automobile had different license plates and it had some “striped tapes down it.”

Detective Sergeant Jim Colburn of the Midland Police Department testified that on July 14, 1975, he received from Sonny Ingram, manager of the Huckabay Chevrolet Co., a report that an automobile had been stolen from the Huckabay lot; Ingram gave Colburn the full description of the car. Colburn passed this information on to the Odessa Police Department at about 1:00 or 1:30 p.m. Later that day Colburn said he helped return the stolen automobile from Odessa to the Huckabay lot.

Odessa Police Officer Frederick C. Sellers received a radio message on July 14, 1975, about a purported theft of an automobile in Midland County. He acted upon the information he received by going to a service station where he saw the appellant in the seat of an automobile attempting to repair a citizens band radio. Sellers said the automobile fit the description of the automobile about which he had received information but he did not in his testimony describe the automobile in which he found the appellant. The appellant told the officer his name and exhibited to the officer for purposes of identification a traffic ticket issued to him earlier in the day. Sellers arrested the appellant. The appellant told Sellers the car belonged to someone by the name of Day.

Jack Smither, a highway patrolman with the Department of Public Safety, on July 14, 1975, at about 12:25 p.m. while he was “working radar” on the Northwest Loop around Odessa, stopped an automobile driven by the appellant. He testified that it was a 1974 two door Chevrolet Nova.

The appellant did not testify and offered no evidence. All of the evidence of probative value supporting the conviction has been summarized; it has been shorn of the hearsay testimony which is without probative value. Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975); Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975); Ex parte Thrash, 167 Tex.Cr.R. 409, 320 S.W.2d 357 (1959); 24 Tex.Jur.2d 51, Evidence, Section 557. We cannot conclude that the evidence shows beyond a reasonable doubt that the car which the appellant was driving when he was stopped by Patrolman Smither was the same ear which had been taken from the Huckabay lot. There is no evidence that it was even the same color. We cannot determine that the car in which the appellant was arrested by Officer Sellers was the car taken from the Hucka-bay lot. Sellers gave hearsay testimony of the description of the automobile which was reported stolen; however, since hearsay evidence has been held not to have probative value, Ex parte Martinez, supra; Mendoza v. State, supra; Thrash v. State, supra; 24 Tex.Jur.2d 51, Evidence, Section 557, we may not consider this testimony in support of the conviction. Sellers did not describe the vehicle in which he found the appellant except to say it fit the description he received on the radio. There is no evidence that the car which Sergeant Colburn helped return from Odessa was the car in which the appellant was arrested or the car which the appellant was driving when he was stopped by Patrolman Smither. This being the state of the record, we have no alternative but to find the evidence insufficient to support the conviction.

The appellant also contends that the trial court improperly submitted to the jury a charge on “the law of principals” and on the law of conspiracy. In view of our disposition of this appeal we need not decide whether it was harmless error in the circumstances of this case to charge on the law of criminal responsibility for the act of another and the law of conspiracy; however, we agree that the evidence does not raise these issues; in the event of another trial, if the evidence is of the same nature, the complained of part of the charge should not be submitted to the jury.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.