James C. Kolbe v. State ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-90-182-CR



JAMES C. KOLBE,

APPELLANT

vs.



THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT NO. 7424, HONORABLE WENDELL A. ODOM, JUDGE

PER CURIAM

A jury found appellant guilty of theft of property having a value of $750 or more but less than $20,000. Tex. Penal Code Ann. § 31.03 (1989 & Supp. 1991). The district court assessed punishment at imprisonment for five years, but imposition of sentence was suspended and appellant was placed on probation.

The jury found appellant guilty of stealing a fence belonging to the LaGrange State Bank. Appellant contends that the evidence is not sufficient to support the verdict. Finding the evidence to be sufficient, and appellant's other points of error to be without merit, we affirm.

Using money borrowed from the bank, appellant purchased land in rural Fayette County on which he built a house. In November 1989, the bank foreclosed on the property and purchased it at a trustee's sale. Appellant continued to live in the house as the bank's tenant.

The bank subsequently found a buyer for the property and, in February 1990, told appellant he would have to move. On February 13, appellant told the president of the bank, E.H. Baumbach, that he intended to remove a 2000-foot-long wooden fence from the property. This fence was distinctive in that it was constructed without nails. The 1 x 6 rails slid into slots cut through the wooden posts. On February 15, Baumbach and a bank director visited the property. They saw appellant removing his personal property. The fence was intact.

The following day, the wooden fence had been substantially disassembled and partially removed from the property. By February 21, the fence was entirely gone. On February 20, Baumbach and other persons investigating the theft visited a farm twenty miles away owned by appellant's son, Jay Kolbe. There, they observed a goose-neck trailer loaded with lumber that appeared, from a distance, to be identical to that in the missing fence. This trailer belonged to appellant's son, but appellant often used it. The trailer was seen at appellant's place just before the fence disappeared. Jay Kolbe had a fence like his father's, and there is testimony indicating that this fence was extended after the theft. Jay Kolbe was working in California at the time the fence was taken. His farm was maintained by full-time employees.

No one saw the fence being moved. Appellant offered evidence that he was in Houston on the days the fence was taken. Jay Kolbe and appellant's brother, Lloyd Kolbe, testified that they had nothing to do with the removal of the fence and did not know who had taken it. Jay Kolbe denied using the stolen fence on his property.

Appellant does not dispute the bank's ownership of the fence. His point of error challenges only the sufficiency of the evidence connecting him to the theft. The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find beyond a reasonable doubt that appellant stole the fence. Carlsen v. State, 654 S.W.2d 444, 448 (Tex. Crim. App. 1983) (opinion on rehearing).

The charge to the jury did not include an instruction on the law of parties. Tex. Penal Code Ann. § 7.02 (1974). In applying the law to the facts, the jury was told that it could convict appellant only if it found that he appropriated the property. Further, an alibi instruction was given; the jury was told to find appellant not guilty if it found that he was at another place at the time of the theft.

Appellant said he was going to take the fence and, a few days later, the fence was gone. Keeping in mind that the credibility of the witnesses and the weight to be given their testimony was for the jury to determine, we conclude that the jury could infer from the evidence beyond a reasonable doubt that appellant carried out his stated intention. The point of error is overruled.

As previously noted, the charge did not authorize appellant's conviction on the theory of criminal responsibility for the acts of another. Appellant urges that during his closing argument, the prosecutor made a statement contrary to the charge by telling the jurors they could convict appellant as a party:

How do you know it happened -- because he called and said, I am taking the fence. I am taking the fence, and the fence is taken.

Did he physically load the boards -- I don't know -- don't need to know that.

Do you need to know that?

He is responsible for taking the fence.

[Defense counsel]: We object to that, Your Honor -- saying somebody else stole the fence -- saying he is responsible for it -- that is outside of the Charge. There is no law on parties in this charge. That is a misstatement of the law.

THE COURT: Overruled. Let's proceed.

An argument that contains a statement of the law contrary to the court's charge is error. Burke v. State, 652 S.W.2d 788 (Tex. Crim. App. 1983). The prosecutor's statement was contrary to the charge to the extent it implied that appellant could be found guilty even if he did not personally participate in the theft, as by hiring someone else to steal the fence. But whether the argument necessitates a reversal depends on the probable effect the argument had on the jurors under the facts of the case. Blansett v. State, 556 S.W.2d 322, 328 (Tex. Crim. App. 1977). We believe it unlikely that the prosecutor's statement was understood by the jury to be a reference to the concept of criminal responsibility for the acts of another. Instead, we believe the jury was more likely to focus on what was actually said, and the statement that appellant did not have to physically load the boards was not contrary to the charge. Under the court's charge, the jury had to find that appellant personally appropriated the fence, but the charge did not require a finding that appellant acted alone. A finding that other persons helped appellant by loading the boards onto the trailer would not be inconsistent with a finding of guilt under the charge, provided the jury also found that appellant was present and actively engaged in the appropriation -- by driving the truck, for example.

We conclude that the prosecutor's argument, if error, was not so manifestly improper, under the circumstances, as to require reversal of the judgment. Burke v. State, 652 S.W.2d at 791. We determine beyond a reasonable doubt that the error made no contribution to the conviction. Tex. R. App. P. Ann. 81(b) (Pamph. 1991).

Appellant's final point of error complains of the award of $10,000 in restitution as a condition of probation. He argues that the evidence does not support restitution in that amount. The record reflects, however, that the court assessed punishment in accord with an agreement between appellant and the State. The point of error is overruled.

The judgment of conviction is affirmed.

[Before Justices Powers, Jones and B. A. Smith]

Affirmed

Filed: December 18, 1991

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