Wilson v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

This is a petition for discretionary review from the Corpus Christi Court of Appeals. Appellant is complaining of the affirmance of his conviction for theft over $20.00 but less than $200.00. Punishment was assessed at sixty days. Since appellant challenges the sufficiency of the evidence, a summary of the facts is required. Appellant was charged with stealing two rings. Appellant specifically alleges that there is no evidence to connect him with the rings.

Helen Hause testified that she was a co-owner of Accents, Etc., a gift and ceramics shop in Nueces County. On May 31, 1980, appellant and a woman came into the store. The woman companion asked to purchase some paint. Mrs. Hause testified that while she was waiting on the woman, appellant was walking around the interior of the store. Hause also related that appellant and the woman argued as to whether she should buy one or two jars of paint and the woman ended up purchasing two jars. Hause, as her practice, made out a receipt for the sale of the paint. Hause kept the original receipt and handed a copy of the receipt to the woman. Appellant and the woman then left the store. Hause was suspicious of the couple and checked the store’s merchandise. Her check revealed that one ring was missing. An inventory conducted the following Monday revealed a second ring was missing.

Elaine Rice testified that she was employed by Accents, Etc., although she was not working on the day of the theft. However, she was at the store on the following Monday when the phone rang at about 7:00 p.m. The caller did not identify himself on the phone. The caller asked what time the store closed and then said he had two rings he had purchased and would like to return. Rice told him he would have to have a receipt. The caller stated he no longer had a receipt and hung up. Appellant arrived at the store one hour later. Appellant presented two jars of paint, two rings and a sales receipt and said he wanted his money back. Appellant’s copy of the sales receipt had been altered to reflect the sale of two rings in addition to the paint. Rice discovered the discrepancy by comparing the copy of the sales receipt with the store’s original sales receipt. Rice refused to refund the price of the rings, but she did refund the price of the paint. Rice did not take custody of appellant’s copy of the sales receipt or the rings. Appellant was later arrested in regard to the theft of the rings.

In his first ground of error appellant argues that the evidence is wholly insufficient to show that the rings appellant had in his possession when he returned to the store were the same rings stolen from the store on May 31, 1980. The Court of Appeals found that under the facts of the case the jury could reasonably infer that the rings presented to Elaine Rice were the same rings described as missing by the owner.

The jury was provided with an instruction on circumstantial evidence. As noted by the Court of Appeals, circumstantial evidence will be sufficient to support a conviction if the facts proved support a reasonable inference that the defendant committed the crime and exclude to a moral certainty any inference consistent with his innocence. Galvan v. State, 598 S.W.2d 624, 627 (Tex.Cr.App.1979). However, a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the defendant’s guilt. Moore v. State, 640 S.W.2d 300 (Tex.Cr.App.1982); Autry v. State, 626 S.W.2d 758 (Tex.Cr.App.1982). The evidence before us merely shows that sometime after appellant was in the store two rings were discovered missing. There is no testimony that anyone saw appellant or his companion take the rings. In addition, the evidence shows that several days later appellant returned to the store and attempted to return two rings which he maintained he had purchased from the store. Again, there is nothing in the record to show that these were the same two rings stolen from the store on May 31. The rings were never introduced into evidence. We find the circumstantial evidence insufficient to exclude every reasonable hypothesis except the guilt of the appellant. Moore v. State, 640 S.W.2d 300 (Tex.Cr.App.1982). Thus, the opinion of the Court of Appeals must be reversed and reformed to show an acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

The State argues that in determining the sufficiency of the evidence an appellate court must view the evidence in the light most favorable to the prosecution. The State relies on Girard v. State, 631 S.W.2d 162 (Tex.Cr.App.1982), and Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981). However, we would point out that footnote 5 in Griffin v. State, supra, recognizes a different standard of review in circumstantial evidence cases. In Sewell v. State, 578 S.W.2d 131 (Tex.Cr.App.1979), this Court stated that in circumstantial evidence cases the evidence is insufficient if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused. This is the standard that must be used in the appellate review of circumstantial evidence cases. In applying this standard to the instant case, we find the evidence adduced at trial insufficient.

Appellant has raised four other grounds of error. However, due to our disposition of the case, we find it unnecessary to consider them. The judgments of the Court of Appeals and the trial court are reversed, 626 S.W.2d 840 (Tex.App.1981), and the case is remanded to the trial court with instructions that an order of acquittal be entered.