Hill v. State

OPINION

CLINTON, Judge.

This is an appeal from a conviction for felony theft in which the punishment, enhanced by two prior felony convictions alleged and proven, was assessed at life confinement. This opinion also involves a post-conviction petition for writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P., which was filed during the pendency of the appeal of the theft conviction.

Appellant contends, among other things, that the evidence is insufficient to sustain the verdict of guilt in the theft conviction and that one of the convictions the State alleged and proved at the penalty stage for purposes of enhancing his punishment was void since he was indigent and not represented by counsel at the time the sentence was pronounced.

The complaining witness, C. B. Burdine, provided the only testimony submitted to the jury on the issue of guilt. According to Burdine, at approximately 8:00 a. m. on July 6, 1978, he was preparing to open Johnson’s Gun Store where he had been employed for three years. During this preparation, he had removed approximately 100 Smith and Wesson handguns from the safe and laid them on top of a glass display, into which he intended to place and lock them. Though he was not yet open for business, the front door was not locked; a man and a woman entered the front door and Burdine asked if he could help them. The man, identified as appellant, replied that he needed some ammunition. When asked what type he wanted, appellant asked his companion who replied she needed shotgun ammunition. Burdine then approached the woman, who was near the ammunition.

As he got the shells from the ammunition case, Burdine turned and saw appellant preparing to put one of the handguns under his shirt, which was not tucked in. Burdine asked appellant “what are you doing?” Appellant dropped the pistol then took another one out from under his shirt, where it had been secured under his arm, and dropped it on the display case too, saying “Let’s get out of here.” The woman “looked astonished” and the two ran out of the store. Burdine picked up a loaded pistol and walked out the door where he observed appellant and his companion leaving the store’s parking lot in a red and white Chevrolet. Several days later, Burdine identified appellant in a corporal lineup.

Burdine testified that one of the pistols involved was a Model 28, .357 Magnum Smith and Wesson worth $180.00 to $200.00; the other was a .38 caliber Smith and Wesson worth between $170.00 and $185.00. He further testified he had given appellant no permission to handle, examine, pick up or otherwise take the pistols and it was a matter of store policy that no customer be given more pistols to examine than one at a time.

We believe the jury’s verdict is adequately supported by the evidence.

The indictment returned against appellant alleged that he did,

“... intentionally and knowingly appropriate property, to-wit: two handguns, of the value of $200.00 or more, but less than $10,000 from the owner, C. B. Bur-dine, without the effective consent of the owner and with intent to deprive the owner of the property; ...”

It is apparently appellant’s contention that, since he never left the shop with the handguns, he is at most guilty of attempted theft. But it is not essential that the property be taken off the premises; it is instead only essential that the evidence show an “exercise of control over the property,”¹ coupled with an “intent to deprive the owner of the property.” We believe that, from the State’s proof that appellant placed one of the pistols under his shirt, the jury was justified in finding an exercise of control over the alleged property with an intent to deprive, sufficient to support those elements of the offense. See Barnes v. State, 513 S.W.2d 850 (Tex.Cr.App.1974).

We hold the evidence adduced sufficiently supports the jury’s verdict of guilt.

At the penalty stage of the trial the State offered into evidence pen packets concerning two prior convictions alleged for enhancement, one of which was a conviction for burglary obtained in Cause No. 6047 in the 29th Judicial District Court of Palo Pinto County on December 11,1963. When the allegations in paragraph three had been read, describing the 1963 conviction, appellant personally pleaded “not true;” still, his trial counsel voiced no objection to the introduction of either prior conviction.²

During the pendency of the appeal from the theft conviction, appellant filed a post-conviction application for writ of habeas corpus in the 29 th Judicial District Court of Palo Pinto County contending that at the time he was formally sentenced in Cause No. 6047, he was indigent and without the assistance of counsel. The trial court convened a hearing on the application at which time appellant testified that his appointed attorney³ had represented him at the trial of the burglary and was present when the jury’s verdict of guilt was returned on December 6, 1963, but that his attorney did not appear on December 11, 1963 for the pronouncement of sentence. The trial court’s docket sheet and the sentence itself, are both silent in this regard. But a transcription of the court reporter’s notes from the sentencing proceeding make it clear that appellant was not at that time assisted by counsel.

The trial court thereafter entered findings of fact and conclusions of law in which he found, among other things,

“Applicant’s court appointed attorney was not present at the time applicant was sentenced on December 11,1963, in Cause No. 6047 on the docket of this court.”

and then concluded,

“Under the existing law as this writer understands it, the sentence in Cause No. 6047 pronounced December 11,1963, must be vacated and applicant returned to this court for resentencing.”

The trial court then caused the record of the writ hearing to be forwarded to this Court consonant with the provisions of Article 11.07, § 2(d), V.A.C.C.P., where it was ordered filed as a brief in Cause No. 62,545, appellant’s direct appeal of the theft conviction from Tarrant County.

While we are not bound by the findings of the trial judge, we have concluded that the evidence supports those findings. The sentence in Cause No. 6047 in Palo Pinto County is hereby set aside.⁴

Having set aside the sentence in one of the convictions alleged and used for enhancement of punishment (Cause No. 6047), we turn to the question of the proper disposition of the direct appeal.

In Smith v. State, 486 S.W.2d 374 (Tex.Cr.App.1972), involving a shoplifting case, we were faced with a similar situation. Two prior felony convictions had been alleged for enhancement of punishment in a McLennan County prosecution. At the penalty stage of the trial, that defendant had entered pleas of “guilty” to the enhancement allegations. Thus, no objection was offered. A life sentence was imposed and an appeal taken. While the appeal was pending in this Court, a postconviction ha-beas corpus application was filed in the trial court alleging that one of the prior felony convictions used for enhancement was void because petitioner had not been represented by counsel when his probation in that case was revoked. The trial judge found Smith was entitled to relief from such conviction, and forwarded the habeas record to this Court. In Smith, supra, at 377, this Court stated:

“Ordinarily, we do not consider habeas corpus matters attacking a prior conviction while the case involving such cause is on appeal. * * * Under the circumstances of this case, we have concluded that it would be a useless thing to require a separate proceeding after the appeal has become final. Therefore, we will consider the matter in disposing of the appeal.”

Thereafter, this Court found the Midland County prior burglary conviction alleged for enhancement to be void. The life sentence for shoplifting originally imposed under Article 63, V.A.P.C., 1925, was reformed under Article 62, V.A.P.C., 1925, to 10 years imprisonment because the other prior conviction for burglary from Bell County and the primary offense of shoplifting were like offenses.

In the instant case, the penalty provisions of the 1974 Penal Code are applicable, and we cannot reform as we did in Smith, supra. Since appellant’s trial in the Tarrant County theft case was before a jury at the penalty stage, our remand must be for an entirely new trial. Ex parte Nivens, 619 S.W.2d 184 (Tex.Cr.App.1981); Bolton v. State, 619 S.W.2d 166 (Tex.Cr.App.1981); Ex parte Howeth, 609 S.W.2d 540 (Tex.Cr.App.1980).

Accordingly, this cause is reversed and remanded to the trial court and appellant is ordered released to the Sheriff of Tarrant County to answer the theft indictment with the enhancement paragraph alleging Cause No. 6047 dismissed therefrom.

It is so ordered.

Before the court en banc.

1 . V.T.C.A. Penal Code, § 31.01, provides in part:

“(5) ‘Appropriate’ means:

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(B) to acquire or otherwise exercise control over property other than real property.”

(All emphasis is mine unless otherwise indicated.)

2 . In a supplemental pro se brief appellant contends that failure of his appointed trial counsel to object indicts the latter as ineffective. However, as the State points out, the record is not in a condition such that the contention may be assayed with any confidence at this stage. Compare Ex parte Scott, 581 S.W.2d 181 (Tex.Cr.App.1979). Moreover, the disposition we are about to make of the matter makes the question moot.

3 . Both the court’s docket sheet from Cause No. 6047A and appellant’s testimony establish that the appointed attorney was Ben Hagman; the trial court’s findings reflect that Hagman is now deceased.

4 . The assessment of punishment was made by the trial court, sitting without a jury; thus, the validity of the conviction is not in dispute. See Article 37.07, V.A.C.C.P.

In view of the fact that appellant discharged his 12 year sentence sometime in 1971, the State has the option to cause his return to Palo Pinto County for resentencing and commencement of the appellate process should he so desire.