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.

ONION, Presiding Judge, concurring.

I wholeheartedly agree and concur in the result reached by the majority in reversing the conviction based upon circumstantial evidence, and using the test for the sufficiency of circumstantial evidence to sustain a conviction, which has been the law of this state at least, since the decision of Henderson v. State, 14 Tex. 503, 514 (1855).

Under this test, every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Earnhart v. State, 575 S.W.2d 551, 554 (Tex. Cr.App.1979); Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977); Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976); Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974); Indo v. State, 502 S.W.2d 166 (Tex.Cr.App. 1973). A conviction on circumstantial evidence, however, cannot be sustained if the circumstances proved do not exclude every other reasonable hypothesis except that of the guilt of the accused and proof amounting to only strong suspicion or mere probability is insufficient. This was forcefully pointed out in Flanagan v. State, 620 S.W.2d 591, 593 (Tex.Cr.App.1981), an opinion for the court by Judge Tom Davis. See also Flores v. State, 489 S.W.2d 901 (Tex.Cr. App.1973); Kinkle v. State, 474 S.W.2d 704 (Tex.Cr.App.1972); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969); Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745 (Tex.Cr.App.1956).

Judge W.C. Davis, speaking for the court, in Bonds v. State, 573 S.W.2d 528, 533 (Tex. Cr.App.1978), wrote:

Having re-affirmed the long-standing test for the sufficiency of the evidence, the majority correctly rejects the cases relied upon by the State Prosecuting Attorney in his brief and properly cites Sewell v. State, 578 S.W.2d 131 (Tex.Cr.App.1979), which recognizes the standard of appellate review in circumstantial evidence cases. The majority, in my opinion, however, falls short of making an adequate explanation of this standard since there exists some confusion about such standard.

The general rule as to appellate review of the question of the sufficiency of the evidence to sustain a conviction is that the evidence must be viewed by the appellate court in the light of the jury's verdict or the court's judgment depending upon whom the trier of the facts happens to be. See Bowers v. State, 570 S.W.2d 929, 932 (Tex.Cr. App.1978); Ransonette v. State, 550 S.W.2d 36, 42 (Tex.Cr.App.1976). See also Darrington v. State, 623 S.W.2d 414 (Tex.Cr.App. 1981); Vaughn v. State, 607 S.W.2d 914 (Tex.Cr.App.1980); Ahearn v. State, 588 S.W.2d 327 (Tex.Cr.App.1979); Nixon v. State, 572 S.W.2d 699 (Tex.Cr.App.1978); 13A Tex.Digest, Crim.Law Key 1144.13(2). This general rule is not to be applied in reviewing on appeal the sufficiency of circumstantial evidence to sustain a conviction. Nevertheless, published opinions of this court and the Courts of Appeals can be found which erroneously apply the general rule in circumstantial evidence cases. This confusion should be avoided.

In Sewell v. State, supra, a panel of this court wrote:

The rule stated in Sewell is well established. See, e.g., Earnhart v. State, 575 S.W.2d 551 (Tex.Cr.App.1979); Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977); Suff v. State, 531 S.W.2d 814 (Tex.Cr.App. 1976); Davis v. State, 516 S.W.2d 157 (Tex. Cr.App.1974); Ysasaga v. State, 444 S.W.2d 305, 308-309 (Tex.Cr.App.1969); Hollingsworth v. State, 419 S.W.2d 854 (Tex.Cr.App. 1967); King v. State, 396 S.W.2d 409 (Tex. Cr.App.1965); Ramirez v. State, 163 Tex. Cr.R. 109, 289 S.W.2d 251 (Tex.Cr.App. 1956). See also 24 Tex.Jur.2d, Evidence, § 742, p. 422; 5 Am.Jur.2d, Appeal and Error, § 821, p. 262.

In applying the general rule to the instant case and citing Ysasaga v. State, 444 S.W.2d 305, 308 (Tex.Cr.App.1969), in support thereof, the Court of Appeals was in error. Ysasaga gives a more detailed description of the standard to be applied in circumstantial evidence than does Sewell.

Since the majority reiterates the long-established test for the sufficiency of evidence in circumstantial evidence cases and the proper standard for appellant review in such cases, I again call to the majority's attention my recent dissent in Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1983). In Hankins the majority abolished the 127-year-old rule requiring a cautionary jury instruction on the law of circumstantial evidence where the case rests wholly upon circumstantial evidence. Such cautionary instruction recognized the need to protect the accused in a criminal prosecution from jury conjecture and speculation, and was designed to guard the jury from basing their verdict upon mere surmises. Myers v. State, 6 Tex.Cr.R. 1 (1879).

In dissenting this writer, inter alia, noted:

13 Article 36.14, supra, provides in part:

`Subject to the provisions of Article 36.07 in each felony case and in each misdemeanor case tried in a court of record the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; ....' (Emphasis supplied.)"

Since the test for determining the sufficiency of the evidence is to remain the same, the majority may wish to let the jurors know the law by which their guilty verdict will be tested.

For the reasons stated, I concur in the result reached in the instant case.

CLINTON, Judge, dissenting.

When first considering appellant's petition for review I was more concerned about disposition of his other grounds of error than with sufficiency of evidence adduced to show his guilt—my view being that in reviewing a circumstantial evidence case it is appropriate that judges of this Court grant an appreciable measure of deference to a reasoned determination by a court of appeals that circumstantial evidence is sufficient. Now, however, the majority assays the same evidence against substantially the same tests utilized by the court of appeals1 —and finds it wanting, in that the majority says the evidence is "insufficient to exclude every reasonable hypothesis except the guilt of the appellant." (Opinion p. 467.)2

Essentially then, my Brothers on this Court are simply substituting their collective judgment for that of three members of the court of appeals on a matter about which reasonable judges sometimes differ.

My own perception of the role of discretionary review assigned to this Court by recent constitutional amendments and concomitant implementing legislation vis a vis the fourteen courts of appeals is that it is more a "law court" than an appellate arbiter over competing contentions of parties on direct appeal. Article 44.45, V.A.C.C.P. and Tex.Cr.App. Rule 302(c); see Combs v. State, 643 S.W.2d 709, 714-717 (Tex.Cr.App. 1982). Thus, in a circumstantial evidence case, though called on to do so in a petition for discretionary review, we are not required to reexamine the record of evidentiary facts and circumstances for reasonable hypotheses other than guilt—especially when the court of appeals has undertaken that task and has rationally rejected the ones suggested by appellant.3

For these reasons I would not disturb the findings and conclusions of the intermediate court with respect to sufficiency of the circumstantial evidence to support the verdict of guilt rendered by a properly charged jury. Since the majority reverses the judgment for insufficient evidence, my other concerns are mooted.

Therefore, I dissent.

ODOM, J., joins.

OPINION ON STATE'S MOTIONS FOR REHEARING

CLINTON, Judge.

Leave to file motion for rehearing was granted the State in these causes and they were consolidated in order for us to determine whether the "standard for appellate review" is the same for circumstantial evidence cases and direct evidence cases.

The question of sufficiency of evidence to sustain a state criminal conviction implicates the Fourteenth Amendment. Jackson v. Virginia, 443 U.S. 307, 319 n. 12, 99 S.Ct. 2781, 2789 n. 12, 61 L.Ed.2d 560 (1979), "announced ... the constitutional minimum required to enforce the due process right" to be free from conviction except on proof beyond a reasonable doubt. The Court then reasoned:

443 U.S. at 318-319, 99 S.Ct. at 2788-2789.

Although Jackson was setting a standard for review of state convictions by federal courts, the due process requirements that it announced were based expressly on the Fourteenth Amendment. They are binding on the states and constitute a minimum standard for our sustaining a conviction. "Under [In re] Winship, [397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970),] which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction [that was obtained even when no rational trier of fact could have found guilt beyond a reasonable doubt] occurs in a state trial, it cannot constitutionally stand." 443 U.S. at 317-318, 99 S.Ct. at 2788. "[S]tate appellate review undoubtedly will serve in the vast majority of cases to vindicate the due process protection that follows from Winship...." 443 U.S. at 322, 99 S.Ct. at 2791.

It follows that circumstantial evidence should not be tested by an ultimate "standard for review" different from direct evidence; the standard in both kinds of cases is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Accord Griffin v. State, 614 S.W.2d 155 (Tex. Cr.App.1981).

Still, we are unable to devise or discover any reason, compelling or otherwise, for abandoning the utilitarian "exclusion of outstanding reasonable hypotheses" analysis for applying the above "standard for review" in circumstantial evidence cases. By the nature of circumstantial evidence, in order to determine it rationally establishes guilt beyond a reasonable doubt, a process of elimination must be used. Illustrative is Taylor v. State, 653 S.W.2d 295 (Tex.Cr. App.1983). We there cited the Jackson "standard for review;" in actually assessing the evidence, no method other than a process of eliminating the guilt of others under the evidence could be fashioned to effectively conclude the evidence rationally established Taylor's guilt beyond a reasonable doubt. See also Girard v. State, 631 S.W.2d 162 (Tex.Cr.App.1982). Stated in the converse, if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding.

Moreover, scrutiny of the analysis suggested in the motions for rehearing (that the focus of our inquiry should be on "any evidence which could rationally support the verdict") reveals it to be functionally indistinguishable from that specifically rejected by the Supreme Court in Jackson, supra, as violative of the Fourteenth Amendment.

Finally, as the motions for rehearing persuasively argue, this Court's opinions have never held the circumstantial evidence analysis constitutes a different standard for review from that to be ultimately applied in direct evidence cases.* If the State's evidence supports an inference other than a finding of the essential elements of the crime, then no trier of fact could rationally find the accused guilty beyond a reasonable doubt—and this is true irrespective of the character of the evidence.

In sum, we are convinced there are no better analytical guidelines for assaying whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt in any given conviction had upon circumstantial evidence than those we currently employ.

The State's motions for rehearing are overruled.

ONION, P.J., concurs in result.

MILLER and CAMPBELL, JJ., not participating.

McCORMICK, Judge, concurring.

I agree that the standard for review in any case is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. I write to emphasize that application of the "exclusion of outstanding reasonable hypotheses" analysis is, as stated by the majority, one criteria which may be applied in arriving at the answer to the ultimate result, but it should not be considered an element of that ultimate standard. And as the majority emphasizes, the method of analysis does not change this standard of review.

Logic dictates that if there is a "reasonable hypotheses" other than the guilt of the accused, then it cannot be said that the guilt has been shown "beyond a reasonable doubt." In Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1983), we recognized that direct and circumstantial evidence were to be treated with equal dignity. Thus, any effort to weave into the standard of appellate review any exception or difference or special treatment for one type of evidence or the other will fail for lack of logic.

Lastly, in applying this standard to the cases before us, the final outcome is the same. Therefore, I concur in the overruling of the States' motions for rehearing in each case.

TOM G. DAVIS, W.C. DAVIS and TEAGUE, JJ., join in this concurrence.