Sharpe v. State , 1983 Tex. Crim. App. LEXIS 999 ( 1983 )

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for theft over $20.00 but less than $200.00. After the jury found appellant guilty, the court assessed punishment at three days and a fine of $300.00.

Appellant complains of the following comment by the trial court to the jury panel after voir dire:

“I want to caution you as a practical matter, you’ll be asked and called upon to make a decision as to the facts in this particular case. Nobody expects you to be intellectually dishonest, but the law does infer compromise as far as you feel like that is the right thing to do.” (Emphasis added).

To constitute reversible error in violation of Art. 38.05, V.A.C.C.P., the comment of the court must be such that it is reasonably calculated to prejudice the defendant’s rights. Marks v. State, 617 S.W.2d 250 (Tex.Cr.App.1981). The record reflects no objection was made to the trial judge’s comment. Error, if any, was waived for failure to object. Downey v. State, 505 S.W.2d 907 (Tex.Cr.App.1974).

Appellant also contends the trial court erred when it denied his request to use pleadings from a civil action to impeach the State’s witness, Troy Davis. On October 27, 1978, Arnett Lee went to the Bon-Ton Liquor Store to cash his paycheck and to buy some beer and scotch. Lee endorsed the check and gave it to Davis. Davis laid the check on the cash register, counted out approximately $152.00, and placed the money on the counter. Before Lee could pick up the money, appellant grabbed approximately $110.00 of it and fled the scene on foot. Davis testified at trial he was the owner of the money.¹

In Oliver v. State, 551 S.W.2d 346 (Tex.Cr.App.1977), it was stated:

“This Court has consistently held that the pleadings and judgments from other cases are inadmissible as hearsay. Acker v. State, 421 S.W.2d 398 (Tex.Cr.App.1967); Yates v. State, 489 S.W.2d 620 (Tex.Cr.App.1973); Brooks v. State, 475 S.W.2d 268 (Tex.Cr.App.1972); Bushy v. State, 51 Tex.Cr.R. 289, 103 S.W. 638 (1907) (ease 3, on motion for rehearing); Pannell v. State, 477 S.W.2d 586 (Tex.Cr.App.1972).”

It appears to be the position of the appellant that the pleading in the civil suit attempted to be introduced in the instant case is an exception to the foregoing rule in that it is an inconsistent statement by the witness. The thing which is essential to this method of attack is that a real inconsistency exists between the prior statement and the present statement of the witness. Ray, Texas Law of Evidence, 3rd ed. 1980, Sec. 697. It must be remembered the proof of ownership sufficient to recover in a civil suit is obviously far different than that required to prove ownership of property² alleged to have been taken in a theft prosecution.

To allow the witness in the instant case to be impeached with the pleading in the civil case is to permit impeachment with an averment of a legal conclusion of ownership in a civil suit pleading which has a far different meaning from that term in a criminal prosecution. In his brief appellant concedes that he can find no cases to support his position. I neither find authority nor reason to accept same. No error is shown.

As to appellant’s contention that there is a variance between the allegation of ownership in the charging instrument and the evidence adduced at trial we must remember the ultimate issue to be determined in this case is whether the State has proved beyond a reasonable doubt that appellant is guilty of theft in accordance with the law charged and not whether Davis or Lee (or his employer) is the ultimate owner, the subject of a civil lawsuit. At the time the money was picked up by the appellant, the money in question was on the counter. Lee had not made his indicated purchase. Despite the fact that Davis had stamped the check and placed it in front of the register the transaction had not been completed. Under Sec. 1.07(a)(24), supra, and our decisions construing same, the State had discharged its burden in proving that Davis was the owner.³

Appellant also contends the court erred when it denied his requested jury instruction requiring an affirmative finding, beyond reasonable doubt, that Davis had not divested himself of ownership at the time appellant took the money. The jury was charged as follows:

“ ‘Owner’ means a person who has title to the property or possession of the property. ‘Possession’ means actual care, custody, control, or management of the property-

[[Image here]]

“Now if you find from the evidence beyond a reasonable doubt that on or about the 27th day of October, 1978, in the County of Dallas and State of Texas, the defendant, Michael Lee Sharpe, did unlawfully appropriate from Troy Davis, the owner, current money of the United States of America belonging to said owner, without the effective consent of said owner, with intent to deprive the said owner of said property, ... then you will find the defendant guilty of theft, as charged in the information.”

The court’s charge tracked the statutory language of the Penal Code, Secs. 1.07(a)(24) and (28), supra. The modified definition of “owner” set forth in the charge was done at appellant’s request. A definition in a charge tracking the statutory definition given to a specific term is sufficient. Milligan v. State, 554 S.W.2d 192 (Tex.Cr.App.1977). When a refused charge is adequately covered by the charge given, no harm is shown. Vidaurri v. State, 626 S.W.2d 749 (Tex.Cr.App.1981). We find no harm and overrule the ground of error.

Finally, appellant argues the State engaged in improper jury argument. The prosecutor stated:

“He [Davis]⅛ out one hundred fifty-two dollars just plain and simple as that... He’s been out one hundred fifty-two dollars of his hard-earned money and this man took it.”

Appellant’s objection was overruled. It appears to be appellant’s position that ownership of the $152.00 is the subject of a civil lawsuit pending between Davis and the maker of the check and that the prosecutor’s comment amounted to an unwarranted legal conclusion. Under the factual posture of this criminal prosecution, coupled with the definition of ownership applicable herein, we perceive no reversible error.

The judgment is affirmed.

1 . “Owner” for purposes of the instant case is defined in V.T.C.A. Penal Code, Sec. 1.07(a)(24) as follows:

“(24) ‘Owner’ means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.”

2 . In Johnson v. State, 606 S.W.2d 894, a security guard was held to be an “owner” as against a thief who had taken sweaters. In Smallwood v. State, 607 S.W.2d 911, it was held that a dock worker was proven to be “owner” at the time of the offense. See also Compton v. State, 607 S.W.2d 246 (Opinion on State’s Motion for Rehearing) where a corporate regional manager was held to be “owner.”

3 . This is not to suggest that had Lee been alleged to have been the owner, that the proof adduced here would not have supported this conclusion since his right to the money was superior to that of the appellant. We find it unnecessary to reach this question under the posture of this case.