author: CLINTON, Judge. MILLER, Judge, ONION, Presiding Judge, TEAGUE, Judge,

text:
    Craig Houston McCLAIN, Appellant, v. The STATE of Texas, Appellee. Charles Vincent NAVARRO, Appellant, v. The STATE of Texas, Appellee.
    Nos. 699-84—McClain, 700-84—Navarro.
    Court of Criminal Appeals of Texas, En Banc.
    April 3, 1985.

      John B. Holmes, Jr., D.A. & J. Harvey Hudson & Yeryl Brown, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

These are appeals from convictions for the offense of theft in which the punishment for each appellant was assessed at three years and a $500.00 fine, probated.

In an unpublished opinion the Houston (1st) Court of Appeals found the evidence insufficient and ordered each appellant acquitted. We will review the basis in law for its finding.

The salient stipulated facts established Houston Police Officer S.R. Jett received information from Kevin Stuart, a Harris County Jail inmate, regarding appellants and their business operation, Gulf Coast Coins. Pursuant to this information, Jett checked out of the police department property room some personalty, including ten gold chains.

Pursuant to Jett’s instructions, Stuart took the property to appellants’ place of business, gave it to defendant Navarro and “had a discussion with him about selling the property to the codefendants at Gulf Coast Coins.” Stuart told Navarro that he had personally stolen the property. Stuart later spoke to defendant McClain, whom he told, “I risked my butt stealing this stuff and should get a better price.” McClain gave Stuart $140.00. Stuart left the property with appellants.

The State alleged by indictment that each appellant did:

“... on or about April 5, 1983, ... unlawfully appropriate by acquiring and otherwise exercising control over property, namely, ten gold chains, owned by S.R. Jett, hereafter styled the Complainant, of the value of over two hundred dollars and under ten thousand dollars, with the intent to deprive the Complainant of the property, and without the effective consent of the Complainant. * * * »

Addressing appellants’ contentions that the evidence was insufficient to support the trial court’s findings of guilt, the court of appeals observed:

“... [T]heft under Sec. 31.03(b)(1) requires ‘that the accused participate, either personally or acting as a party, in the initial unlawful appropriation of the property from its owner.’ Casey v. State, 633 S.W.2d 885 (Tex.Crim.App.1982). In Casey, the Court instructed:
‘If the accused does not take part in the initial unlawful appropriation but he does later acquire or exercise control over the previously stolen property knowing that it was stolen by another he is guilty only of theft under Sec. 31.03(b)(2). Such an interpretation of these sections is required by common sense and logic; any other interpretation of Sec. 31.03(b)(1) would allow conviction for non-criminal conduct.’
633 S.W.2d at 887.
The stipulated evidence in the instant case establishes that the appellants had no participation in the ‘initial unlawful appropriation’ (if there was one) of this property; indeed, the stipulations explicitly state that the ‘original owner of the ten gold chains and the exact facts regarding the original acquisition or appropriation of these ten gold chains is unknown to any witness in this [sic] eases.’ ”

We granted the State’s petition for discretionary review in order to address the contention that the reasoning underlying Casey is unsound and should be overruled.

The court of appeals has undoubtedly applied Casey correctly to the instant cases. We now turn to the question presented: whether Casey was correctly decided.

The panel opinion in Casey construed our present theft statute to proscribe only “two distinct” types of conduct — what would have essentially constituted “theft” and “receiving and concealing” under old Articles 1410 and 1430 Vernon’s AnnJP.C. (1925), respectively — focusing primarily on the manner in which the actor acquired the property. Pursuant to that construction, Casey held that § 31.03(a) with (b)(1)

“requires [in addition to the express elements of the offense,] that the accused participate, either personally or acting as a party in the initial unlawful [actual taking][ ] of the property from its owner. See Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976).”

Casey, supra, at 887.

Having reviewed the stated rationale of Casey, we conclude its addition of an element in some cases — “participation in the initial acquisition” — to the constituents of theft as proscribed by the Legislature in § 31.03(a), is untenable.

The error of Casey is most graphically demonstrated in cases where the circumstances of the appellant’s acquisition of the property are unknown and unprovable. E.g., Mulchahey v. State, 574 S.W.2d 112 (Tex.Cr.App.1978). What was shown in Mulchahey, supra, was an exercise of control over several vehicles by the defendant, coupled with knowledge he did not have the respective owners’ consent and his intent to deprive the owners of the vehicles — -just what the theft statute prohibits. V.T.C.A. Penal Code, § 31.03(a). Mulchahey’s claim on appeal — that the State proved neither that he initially took the vehicles nor that he knew they were stolen when he acquired them — was rejected on the basis that the proscribing statute does not require such proof. Clearly, the evidence established Mulchahey committed a theft as contemplated by § 31.03(a).

The error of Casey is precipitated by its focus on the “manner of acquisition” of personal property, a focus the Legislature removed entirely from the theft statute in the 1974 penal code, then further refined in the 1975 legislative session. Just as it has been in the past recognized that the actor’s intent to “behefit himself or another” or to “withhold the property permanently” are not essential to commission of a theft, so too has it now been acknowledged that the “manner of acquisition” is inconsequential to the evil of a theft: the gravamen of theft is in depriving the true owner of the use, benefit, enjoyment or value of his property, without his consent.

Thus, the varying misleading emphases on aspects of acquisitive conduct proscribed under former penal codes were sifted out by the new, and a single offense was distilled from the common elements contained in each: clearly, if one exercises control over property knowing it is without the owner’s consent, and intending to deprive the owner of it, it matters not “how” the actor got the property, whether he intended to benefit himself or another, intended “permanently” to deprive the owner, etc.

One of the single biggest problems faced by prosecutors under the old theft statutes was in proving “receiving and concealing” cases because the proof turned on whether the accused had knowledge of a circumstance surrounding his “receipt” of the property — that being that the property was stolen. Since this scienter is one not infer-able from the act of “receipt” of the property alone, there was often no way to convict “fences” or other persons dealing in stolen goods, even if the proof clearly established a knowing nonconsensual possession of the property to the exclusion of the true owner with the intent to deprive the owner of the property.

Thus, there were at least two eventual innovations in the new code designed specifically to assist in prosecuting such persons: (1) the “exercise of control” feature of “appropriation” which dispensed with the necessity of a “receipt” of property and, perforce, knowledge it was stolen at that very moment; and (2) in the event the prosecution could prove the actor had participated in numerous similar receipts of property which, in fact, was stolen, § 31.-03(c)(1) allowed proof of those transactions to show knowledge of stolen status of the property. See also V.T.C.A. Penal Code, 31.03(c) (2) — (4).

“Few property transactions do not involve the acquisition of another’s property with intent to deprive him of it,” Committee Comment to § 31.03. Thus, the committee (and later the Legislature) recognized that what separates lawful acquisitive conduct from theft is knowledge of a crucial “circumstance surrounding the conduct” — that the acquisition is “without the owner’s consent.” The crime of theft requires the “forbidden conduct” element of the offense (“exercise of control over property”) to be accompanied by this “circumstance surrounding the conduct,” and V.T.C.A. Penal Code, § 6.03(b), requires proof of the actor’s knowledge of that “circumstance surrounding the conduct:” that the conduct is “without the owner’s consent.” With this crucial feature, the actor’s acquisitive conduct is clearly “unlawful.” See Lugo-Lugo v. State, 650 S.W.2d 72 (Tex.Cr.App.1983) (Opinion concurring on state’s motion for rehearing).

It is logically apparent that one way to prove the actor had “knowledge” that his exercise of control over property was “without the owner’s consent” is to prove that at some point during his exercise of control he “knew it was stolen by another.” Thus, knowing the property possessed “was stolen by another” is merely a subset of knowing the possession is “without the owner’s consent.” Casey, however, treated these “circumstances surrounding the conduct” as mutually exclusive.

Not only is such a treatment patently illogical in fact, but it also conflicts with the express legislative history of the statute:

“Section 31.03(b)(2) provides that it is ‘unlawful’ to ... exercise control over property the owner [sic] knows is stolen; thus the receiver is guilty of theft under Section 31.03. ‘Receiving’ is included out of an abundance of caution rather than out of necessity, because one who obtains or exercises control over property he knows is stolen does so [knowing it is] without the owner’s effective consent as clearly as when he physically steals the property himself.”

Committee Comment to § 31.03.

Thus, it is clear that the general allegation that the conduct and accompanying mental state (appropriation with the intent to deprive) were done “unlawfully,” or even “without the owner’s consent,” would support a conviction for theft in which the proof established the actor’s “initial taking,” his “receipt knowing the property was stolen” or neither such mode of acquisition, so long as all elements of theft were proved. Section 31.03(b)(1) and (2) simply do not provide the “nature of the forbidden conduct;” instead, they are both only “circumstances surrounding the conduct,” which in no way constitute “acts or omissions” of the defendant. It follows that these provisions have evidentiary import only in terms of establishing the “unlawfulness” of the appropriation, and the defendant is not entitled to have them expressed in the State’s charging instrument as a matter of “form” under Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981) (Opinion on state’s motion for rehearing), much less substance.

In sum, neither the rationale nor holding of Casey is supported by logic or legal authority; in fact, Casey flies in the face of the Legislature’s express purpose in consolidating theft offenses. It attempts to reduce the offense of theft to “two separate and distinct ways in which the offense could be committed” which, with deference, is much too simplistic; there are myriad “ways in which the offense could be committed.” But Casey attempted to elevate mere matters of proof to “distinct elements” comprising “two separate” offenses, then tacked on a new “element of the offense” (“initial actual taking”). There is certainly no principled reason, compelling or even weak, to revive the very problems the Legislature sought to eliminate in the new penal code, as well as create new ones.

Casey is overruled.

This cause is remanded to the court of appeals for determination of appellants’ contention that the evidence fails to establish their exercise of control of the affected property was “without the owner’s effective consent.”

It is so ordered.

MILLER, Judge,

concurring.

I join the majority opinion and write only to address the accusation in the dissent by Onion, P.J., that the majority is so caught up in the fever of result orientism that it ignores prior case law “of which it has been made acutely aware.”

Just today, in Roeder v. State, - S.W.2d - (No. 68,887, delivered April 3, 1985), this Court reaffirmed the doctrine of appellate review that mandates review of a sufficiency of the evidence ground in just this situation. When an appellate court finds that evidence was improperly admitted and considered, we do not entertain a challenge to sufficiency of the remaining evidence. Calling the admission of the tainted evidence “trial error,” we remand for a new trial. Burks v. United States, 487 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). However, if in such a situation appellant complains that “all of the evidence, proper and improper, is insufficient to support the conviction,” then we must consider that claim vis-a-vis double jeopardy. It is, in fact, our usual practice. Porier v. State, 662 S.W.2d 602, 606 (Tex.Cr.App.1984), as cited in Roeder, supra.

In the case at bar, appellant complains that all the evidence, including the stipulations, is insufficient to support the verdict. It is of no moment then that the stipulations are fatally defective except that this defect will assure appellant of at least a new trial. However, if the evidence, including the stipulations, is insufficient then the State has had its bite at the apple and appellant is entitled to a verdict of acquittal.

The majority opinion does nothing more than address the premise under which the court of appeals operated in deciding appellant’s sufficiency ground, and remands the case for determination of that ground. Appellant is entitled to have that ground addressed because jeopardy is raised, and the State is entitled to have that ground addressed correctly. I am “amazed” that the dissent would attempt to deprive appellant of such a basic tenet of due process as the protection afforded by the double jeopardy provisions of our State and National constitutions.

ONION, Presiding Judge,

dissenting.

The question before this Court involves the sufficiency of the evidence to sustain the convictions. Yet an examination of the appellate record quickly reveals the evidence consists entirely of stipulations entered in this trial before- the court on the pleas of not guilty. Such stipulations do not comply with the provisions of Article 1.15, V.A.C.C.P. The appellant’s waiver of the appearance, confrontation and cross-examination of witnesses and consent to the stipulations has not been approved by the trial court in writing. About this there is no dispute. Such stipulations cannot be considered as evidence. Without evidence the result of the majority’s opinion cannot be reached.

Article 1.15, supra, provides:

“... The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.” (Emphasis supplied.)

Compliance with the statute has long been held mandatory in order for the stipulation to be considered as evidence. Elder v. State, 462 S.W.2d 6 (Tex.Cr.App.1971); Rangel v. State, 464 S.W.2d 858 (Tex.Cr.App.1971); Hughes v. State, 533 S.W.2d 824 (Tex.Cr.App.1976).

In Rodriquez v. State, 534 S.W.2d 335 (Tex.Cr.App.1976), it was held that a violation of the mandatory provisions of the statute constitutes reversible error, even if the matter is not raised in trial court or on appeal. The court said: “Fundamental error accompanied the admission of the stipulated evidence. ...”

In Clark v. State, 657 S.W.2d 121 (Tex.Cr.App.1983), this Court, en banc, in an unanimous opinion, speaking through Judge Tom Davis stated:

“This court has consistently held that compliance with this statute is mandatory, in the trial before the court, regardless of the plea, for a stipulation to be considered evidence. Young v. State, 648 S.W.2d 6 (Tex.Cr.App.1983); Valdez v. State, 555 S.W.2d 463 (Tex.Cr.App.1977).
“In this case the trial court did not consent to and approve the stipulation by affixing his signature to it. The failure of the court to comply with the requirements of Article 1.15, V.A.C.C.P. necessitates reversal of the judgment. Since this was a trial error an acquittal will not be entered. Ex parte Duran, 581 S.W.2d 683 (Tex.Cr.App.1979).” (Emphasis supplied.)

In Young and Valdez as in Clark and Ellard v. State, 650 S.W.2d 840 (Tex.Cr.App.1983), the failure of the court to comply with Article 1.15, supra, called for reversal of the judgment involved. The stipulation could not be considered evidence.

The Courts of Appeals have followed these cases. In Green v. State, 666 S.W.2d 291 (Tex.App. [14th Dist.] 1984), it was held that in absence of the trial judge’s signature approving the defendant’s waiver and consent to the stipulation the stipulation was inadmissible evidence. See also Lewis v. State, 647 S.W.2d 753 (Tex.App. [3rd Dist.] 1983).

And only recently on March 20, 1985 this Court refused a State’s petition for discretionary review in Cause No. 0723-84 where the Houston [14th] Court of Appeals reversed a murder conviction where the stipulated evidence was not approved by the trial court in writing as required by Article 1.15, supra, although the issue was not raised in the trial court or on appeal. See Anderson v. State (Tex.App. [14th Dist.] No. A 14-83-343 CR — May 3, 1984), an unpublished opinion.

The instant case, like those above, involved violation of the mandatory provisions of the statute and constitutes reversible error even if the matter was not raised in the trial court or upon appeal in the Court of Appeals or this Court. Young v. State, supra; Hughes v. State, supra. See and cf. Carter v. State, 656 S.W.2d 468 (Tex.Cr.App.1983).

The majority blithely ignores the undisputed condition of the record and this long line of cases. Perhaps in its eagerness to use this cause and only this cause as a vehicle to reach a desired result now, the majority chooses to close its eyes and turn a deaf ear to that of which it has been made acutely aware.

One may dislike, or even quarrel with the legislative mandate expressed in Article 1.15, supra, but it must be followed so long as it is the law. An appellate judge may not pass this cup from his lips. Article I, § 16, Tex.Const. He cannot ignore facts which bring into play laws he does not personally approve, or disregard certain laws in order to reach a desired result in a particular case.

Today’s majority does not mention, or even give a hint that the evidence it utilizes to reach its result is not properly before this Court. This is a situation of deliberate bypass. “Color me amazed” is not an adequate expression of concern here.

I vigorously dissent.

TEAGUE, Judge,

dissenting.

The majority expressly overrules Casey v. State, 633 S.W.2d 885 (Tex.Cr.App.1982). Casey, supra, however, should not be overruled; instead, it should be reaffirmed by this Court. To the action of the majority overruling Casey, supra, I respectfully dissent.

The court of appeals, relying upon this Court’s well written and well reasoned panel opinion by Judge Dally of Casey v. State, supra, reversed the appellants’ convictions after it found that the evidence was insufficient because there was no proof under the theory alleged in the indictment that appellants were involved in the initial unlawful appropriation of the property as required by this Court in Casey v. State, supra.

In Casey v. State, supra, this Court correctly held that when the Legislature enacted the theft statute, it provided that there were two separate and distinct ways that the offense of theft could be committed. One of the ways is to establish that the defendant appropriated property of another without the owner’s effective consent. Y.T.C.A., Penal Code, Section 31.-03(b)(1). Another way is to establish that the accused, acting with intent to deprive the owner of property, appropriated property, which is stolen property, knowing it was stolen by another. Section 31.03(b)(2). The panel ordered the defendant Casey’s conviction reversed because “the indictment allege[d] an offense under Sec. 31.-03(b)(1); however, the evidence establishes only a transfer of stolen property and the evidence fails to show that the appellant was involved in the initial appropriation from the owner.” (887).

This cause is almost a xerox copy of what the panel was confronted with in Casey v. State, supra. Casey controls the disposition that should be made of appellants’ contention that the evidence is insufficient to sustain a conviction under Sec. 31.03(b)(1), as was alleged in their respective indictments. The majority, however, erroneously overrules Casey v. State, supra.

Almost one hundred years ago, Judge Davidson of this Court in Castleberry v. State, 35 Tex.Cr.R. 382, 33 S.W. 875 (Tex.Cr.App.1896), stated the following: “It would be a dangerous doctrine to hold every citizen guilty of receiving stolen property, and send him to the penitentiary, because he was found in possession thereof.” (875).

In Casey v. State, supra, Judge Dally stated the following: “More importantly to allow the prosecution of cases involving the transfer of stolen property under Sec. 31.-03(b)(1) creates the possibility that an innocent person could be convicted of theft. A good faith purchaser of property, not knowing that the property was stolen, would be knowingly and intentionally exercising control over property with the intent to deprive the owner of the property without the owner’s effective consent. To avoid such a possibility Sec. 31.03(b)(2) requires that the accused know that the property was stolen by another.” (887).

The warnings that both Judge Davidson and Judge Dally stated are as applicable today as when announced in 1896 and 1982.

I believe that under the majority opinion it will now be permissible for the State to prosecute and convict persons only because they are found in possession of stolen property. This holding flies in the face of what has always been axiomatic in American jurisprudence, namely, that “the mere naked possession of stolen goods, not aided by other proof, is no evidence of the defendant’s having received them, knowing them to be stolen.” Castleberry, supra, 33 S.W. at 875.

The State argues that “this Honorable Court’s rationale in Casey is fallacious.” (Page 5 of State’s Petition for Discretionary Review.) I find that it is the majority opinion, and not this Court’s rationale in Casey, supra, that is fallacious.

What appears to cause the majority to use the rationale it did in this cause is that it believes that “One of the single biggest problems by prosecutors under old theft statutes was in proving ‘receiving and concealing’ cases because the proof turned on whether the accused had knowledge of a circumstance surrounding his ‘receipt’ of the property — that being that the property was stolen. Since this scienter is one not inferable from the act of ‘receipt’ of the property alone, there was often no way to convict ‘fences’ or other persons dealing in stolen goods, even if the proof clearly established a knowing nonconsensual possession of the property to the exclusion of the true owner with the intent to deprive the owner of the property.” Contrary to what the majority might believe, but because of the number of receiving and concealing cases that this Court has in the past affirmed, see the cases collated under Texas Digest Criminal Law Key 511(4), I do not believe that the State’s burden was all that great.

I also find it rather interesting that the majority does not cite a single decision from any other jurisdiction to support its rationale and analysis for the proposition that when the Legislature of this State enacted the theft statute it did not intend to do just exactly what Judge Dally stated in Casey v. State, supra. Casey, supra, should be reaffirmed, not overruled.

There is yet another reason why the appellants’ convictions should be reversed. All should agree that the trial court committed reversible error in accepting the stipulations of evidence without full compliance with Art. 1.15, V.A.C.C.P. This, however, was only trial error.

In Foster v. State, 635 S.W.2d 710 (Tex.Cr.App.1984), this Court held that in making the determination whether the evidence was sufficient, if there was trial error in the improper admission of evidence, the evidence will be reviewed on the assumption that all admitted evidence was properly admitted. As applied in this case, the substance of the appellants’ stipulations must be reviewed despite the procedural error in admitting the stipulations.

Therefore, I must also dissent to the majority’s failure to discuss the sufficiency of the evidence. See Howeth v. State, 645 S.W.2d 787 (Tex.Cr.App.1983).

For all of the above reasons, I respectfully dissent.

      . V.T.C.A. Penal Code, Section 31.03, [hereafter "§ 31.03"] provides in relevant part:
      “(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of the property.
      (b) Appropriation of property is unlawful if:
      il) it is without the owner’s effective consent; or
      (2) the property is stolen and the actor appropriates the property knowing it was stolen by another.”

      . In the alternative, the State contends that if Casey is determined to be correct the State should not be precluded from retrying appellants under § 31.03(a) and (b)(2) because Casey treats these provisions as proscribing a separate and distinct theft offense from the one prosecuted in the instant case under § 31.03(a) and (b)(1). Though we also granted review on this ground our disposition of the first ground renders its treatment unnecessary.

      . " ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and tó appropriate it to the use or benefit of the person taking.” (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . "Whoever shall receive or conceal property which has been acquired by another in such a manner as that the acquisition comes within the meaning of the term theft, knowing the same to have been so acquired shall be punished in the same manner as if he had stolen the property.”

      . See n. 1 for recitation of the proscription against theft.

      . Though Casey used the word "appropriation,” one only need go to the case then cited, Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976), to see the intended meaning was "actual taking.”

      . There is a continuing misconception among the bench and bar that the word "appropriate” means (or at least connotes) some sort of "taking” or "transfer” of property (other than real property). It does not. "Appropriate” means any "exercise of control over” the personalty in question; it is more akin to "possession” than to a “transfer" under the 1974 penal code. See § 31.01(5)(B).

      . The unlawful manner of acquisition of property was tacitly acknowledged to be the gravamen of other offenses such as robbery and burglary where obtaining property by force, violence or unlawful entry was seen to be the primary evil sought to be prevented, and thus the focus of those crimes.

      . The original form of § 31.03(a) and (b) made a distinction between two types of alternative "forbidden conduct” elements of theft; "obtains” and "exercises control over" property. Both of these alternatives were removed by the 1975 amendment which substituted the single forbidden conduct element "appropriates.” The definition of “obtain” contained originally in § 31.01(5) became part of the definition of “appropriate,” amending the same provision in 1975, effective September 1, 1975. Casey neglected this clear manifestation of the Legislature’s intent to remove the "manner of acquisition” from the offense of theft.

      .Wholly ignored by the Casey panel is the unambiguous declaration by the Legislature that “theft constitutes a single offense superced-ing the separate offenses previously known as [among others] theft ... and receiving or concealing stolen property.” V.T.C.A. Penal Code, § 31.02.
      Section 31.02 — like 31.01 and 31.03 — was adopted in 1973 as proposed by the State Bar Committee on Revision of the Penal Code, final Draft 1970. That Committee explained its intent in consolidating all theft offenses in § 31.-02;
      "No part of the penal code has produced more confusion, more appellate litigation, and more reversals on [matters] unrelated to the actor's guilt or innocence than the multitude of offenses proscribing criminal acquisitions of another's property. Although the theft offenses attempt to separate guilty from innocent acquisitions, ... their effect all too often is to embroil the courts in nice questions about the appropriateness of conviction under one offense label as opposed to another. The present distinctions ... are unnecessary for establishing the point at which acquisitive conduct becomes criminal .they do, however. place unnecessary obstacles before conviction of the guilty.
      For these reasons, the committee decided to consolidate most theft offenses into a single, comprehensive offense aimed at the harm that accompanies the acquisitive conduct, however, the acquisition is accomplished. * * Theft is a single offense with a uniform culpable mental state, a uniform result, uniform penalties, and uniform defenses, all of which focus on culpability rather than, as under present law, whether the State is pursuing the defendant under the appropriate offense label.”

      Texas Penal Code: A Proposed Revision, Final Draft 1970, Committee Comment to § 31.02 [hereinafter Committee Comment].

      ."['Exercising control’] covers not only purse snatching, shoplifting, and other thefts by strangers, but also receiving or concealing stolen property and the conduct of persons who possess another’s property with consent but exercise their possessory rights in a manner that deprives the owner of the property.”
      Committee Comment to § 31.03.

      . See V.T.C.A. Penal Code, § 6.03.

      . V.T.C.A. Penal Code, § 1.07.

      . Consideration of the operation of § 6.03, as explicated in Lugo-Lugo, supra, reveals the concern of the Casey panel — that its interpretation is the only thing standing between convicting innocent persons of theft — to be totally unfounded.

      . It simply cannot be argued with any logic that a person who exercises control over property he knows was stolen by another does not know his exercise is without the true owner’s consent.

      . The assertion in Casey at 886-887 that "the Legislature while creating only one offense provided two separate and distinct ways in which the offense could be committed” is not only an inherent semantical contradiction, but is also wrong as a matter of reality.


source: Caselaw Access Project

author: THOMAS G. DAVIS, Judge.

license: Public Domain

text:
    Jack Fenner ELLIOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 609-84.
    Court of Criminal Appeals of Texas, En Banc.
    April 3, 1985.
    Frank M. Sheppard, Jr., Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr., Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

Trial was before the jury upon a plea of not guilty to a charge of gambling promotion. V.T.C.A. Penal Code, Sec. 47.03. After the jury found appellant guilty, the trial court assessed punishment at seven years and $5,000.00. The Court of Appeals for the Fourteenth Supreme Judicial District (Houston) affirmed appellant’s conviction. Elliott v. State, 681 S.W.2d 98 (Tex.App.— Houston [14th] 1984). We granted appellant’s petition for discretionary review in order to examine the Court of Appeals’ holding that probable cause existed for the issuance of a warrant to search appellant’s residence.

The affidavit in support of the warrant in the instant case was presented by Houston Police Department Vice Division Officer L.E. Doreck to Judge Joseph M. Guari-no of the 183rd District Court in Harris County on November 20, 1981.

Since it is the information contained in the affidavit that, according to appellant, falls short of establishing probable cause, we will quote at length from that document:

“I, L.E. Doreck, a peace officer employed by the City of Houston Police Department assigned to the Vice Division do solemnly swear that I have reason to believe and do believe that Jack F. Elliott, a white male, D.O.B. 1/21/52, and other persons who are unknown to your affiant, are currently in the unlawful promotion of gambling to-wit: bookmaking, and are currently in the unlawful possession of gambling paraphernalia, including but not limited to, line sheets, recap sheets and betting slips within a location commonly known as 3601 Lazy Spring, Houston, Harris County, Texas....
“MY BELIEF IS BASED UPON THE FOLLOWING FACTS:
“On October 22, 1981, your affiant was contacted by a confidential informant, who for reasons of personal safety and security shall remain unnamed throughout this affidavit, but who has given your affiant information on several past occasions concerning criminal activities and on each and every past occasion your affiant found this information to be true and correct. This informant stated to your affiant that he wished to meet with your affiant in order to relate to your affiant information concerning gambling activities. Based upon this request, and on the same date being October 22, 1981, your affiant personally met with the aforementioned informant who stated to your affiant that a person, known to the informant, as Jack Elliott, was currently conducting an illegal bookmaking operation. The informant stated to your affi-ant that he, the informant, had been personally betting with Jack Elliott for the past several months and that he would contact Elliott by calling Telephone number 462-2019 and that Elliott would give your informant current line information on both college and professional football games as well as receive and record any bets which the informant wished to place with Elliott. The informant further gave your affiant a physical description of Elliott and said that Elliott was approximately 6' tall, 220 lbs with a beer belly and was in his late 20’s.
“On October 23, 1981, your affiant met with Sgt. S.D. Plaster who is the Supervising Officer of the Gambling Squad of the Houston Police Department Vice Division, and relayed the aforesaid information to Plaster. Further, your affiant requested Plaster to contact the Southwestern Bell Telephone Company in order to ascertain billing information on telephone number 462-2019. Later that same date, Plaster related to your affiant that he, Plaster, had learned from Southwestern Bell Telephone Company that telephone number 462-2019 is an unlisted number installed at 3601 Lazy Spring, Houston, Texas, and is billed to Jack F. Elliott at that address. In addition thereto, your affiant contacted Houston Lighting and Power Company and determined that the utilities at 3601 Lazy Spring, Houston, Texas, were billed to Jack F. Elliott at that address and that the records of Houston Lighting and Power Company show that Elliott’s phone number was 462-2019. Further, your affiant checked the records of the Houston Police Department Vice Division and learned that Jack Elliott had been arrested on April 12, 1977 for promotion of Gambling and this arrest occurred at 3601 Lazy Spring.
“On October 25, 1981, your affiant again contacted the aforementioned informant who stated to your affiant that on that date, he, the informant, had called telephone number 462-2019 and talked with Jack Elliott. The informant went on to state that Elliott gave the informant current line information on both college and professional football games and the informant placed several bets with Elliott. On that same date, your affiant personally went to 3601 Lazy Spring, Houston, Texas, and found this to be a beige single story residence located on the Northwest corner of Lazy Spring Street where it intersects with Colleen Street. The house faces East on to Lazy Spring Street and has an attached carport on the Northern end of the house and has a wooden fence surrounding the backyard. “On October 26, 1981, your affiant again spoke with the informant who stated to your affiant that he again called telephone number 462-2019 and again placed a bet with Jack Elliott.
“On November 1, 1981, your affiant again spoke with the confidential informant who stated to your affiant that he, the informant, again called telephone number 462-2019 and again placed a bet with Jack Elliott.
“On November 2, 1981, your affiant again spoke with the confidential informant who stated that he had again called telephone number 462-2019 and again placed bets with Jack Elliott on football games scheduled to be played.
“Your affiant had learned from Sgt. Plaster that telephone number 462-2019 had call forwarding capabilities. Prior to November 1, 1981, your affiant received Grand Jury subpoenas from the Harris County District Attorney’s Office which were issued to the Southwestern Bell Telephone Company in- order to determine activation and final destination of calls originally going to telephone number 462-2019. As a result of the issuance of said subpoenas, your affiant had learned from Southwestern Bell Telephone Company that call forwarding was not activated on telephone number 462-2019 on either November 1 or November 2, 1981 and that all calls were received at 3601 Lazy Spring, Houston, Texas.
“On November 18, 1981, your affiant again spoke with the aforesaid confidential informant who stated to your affiant that Jack Elliott is still receiving and recording bets and can still be reached at telephone number 462-2019.
“Your affiant has related all of the aforesaid information contained in this affidavit to Sgt. S.D. Plaster. Your affiant personally knows that Plaster has been assigned to the Gambling Squad of the Houston Police Department for approximately seven years and has participated in hundreds of gambling investigations and arrests. Further, Plaster has stated to your affiant that it has been his experience that bookmaker[s] routinely keep gambling paraphernalia including, but not limited to, line sheets, recap sheets and bet slips inside of the premises where they are receiving and recording bets. Based upon the information received by your affiant and the investigation that your affiant has done in this case, coupled with Plaster’s experience with gambling investigations, it is Plaster’s opinion that Gambling paraphernalia is currently located in 3601 Lazy Spring, Houston, Harris County, Texas. “WHEREFORE PREMISES CONSIDERED your affiant respectfully requests that a warrant issue authorizing your affiant or any other peace office of Harris County, Texas to enter the aforesaid residence located at 3601 Lazy Spring, Houston, Harris County, Texas, with the authority to search for and to seize any and all gambling paraphernalia that may be located therein.
“FURTHER, your affiant requests that this warrant include a warrant for the arrest of Jack F. Elliott and any other persons who may be found therein and who are either engaging in the unlawful promotion of gambling or who may be in the unlawful possession of gambling paraphernalia.”

The affidavit establishes the credibility of the unnamed informant by noting that he had “given your affiant information on several past occasions concerning criminal activity and on each and every past occasion your affiant found this information to be true and correct.” Avery v. State, 545 S.W.2d 803 (Tex.Cr.App.1977); Acosta v. State, 403 S.W.2d 434 (Tex.Cr.App.1966).

The basis of the informant’s knowledge that appellant was engaged in unlawful promotion of gambling was also plainly shown; the informant had himself received line information from and placed bets with appellant for several months prior to October 22,1981. The informant placed further bets with appellant on October 23, October 26, November 1, and November 2, and on November 18, 1981 related that appellant was still recording and receiving bets at the same telephone number. See Moore v. State, 456 S.W.2d 114 (Tex.Cr.App.1970).

The information as to the appellant’s address was obtained by the affiant through double hearsay but credibility and basis of knowledge were present at each level of the hearsay. See Hennessy v. State, 660 S.W.2d 87 (Tex.Cr.App.1983).

No corroboration of the informant was needed but a minimal amount was provided through affiant’s check with the telephone and utility companies, and police department records detailing appellant’s prior arrest, at the address in question, for promotion of gambling.

Appellant’s contention concerning the affidavit is that neither the affiant nor his informer ever saw any gambling paraphernalia on the premises in question. Moreover, appellant complains that Sergeant Plaster’s expert opinion as to the likely presence of gambling paraphernalia at appellant’s house should have been supplemented by Plaster’s own independent investigation or personal observations.

We are unaware of any requirement that an informant or an affiant must have seen the items in the context of this case sought under a search warrant before the warrant can issue.

In the instant case, a credible affiant received line information and placed bets, that is, gambled, with appellant on many occasions over a period of several months. It is reasonable to assume that a suspect who is running a gambling operation out of his residence has gambling paraphernalia at the same location. Further, the assumption could have been made by any reasonable person, including a magistrate, not just someone with Sergeant Plaster’s background.

Far from being deficient, the affidavit in the instant case showed careful preparation and concern for meeting relevant probable cause standards.

The judgment of the Court of Appeals is affirmed.

      . The warrant was a combination arrest and search warrant. It commanded the sheriff or any other peace officer to arrest appellant and search his residence for gambling paraphernalia.

      . Though the affidavit does not state how the informant got his information on November 18, given the clear basis of the informant’s knowledge on the other dates, it would be reasonable for a magistrate to assume that he obtained his knowledge in a reliable manner on the 18th. Moreover, given the informant’s continued success over a period of several months at placing bets with appellant, and given the nature of the illegal operation allegedly being carried on in appellant’s house, the information in this case would not have been stale even if the informant’s last bet had been placed on November 2. Smith v. State, 23 S.W.2d 387, motion for rehearing overruled 24 S.W.2d 1095 (Tex.Cr.App.1930); Rozner v. State, 109 Tex.Cr.R. 127, 3 S.W.2d 441 (Tex.Cr.App.1928). See also the discussion in 1 W. LaFave, Search & Seizure, Sec. 3.7(a) (1978).


author: COLLEY, Justice.

text:
    Don NICHOLAS and Charles Cannon d/b/a Nicholas-Cannon Oil Company a/k/a Cannon Oil Company and Nicholas Petroleum Company, Appellants, v. David CROCKER, R.D. Crocker, F.M. Fillingim and Richard Fillingim, Appellees.
    No. 12-83-0091-CV.
    Court of Appeals of Texas, Tyler.
    June 28, 1984.
    Rehearing Denied Oct. 4, 1984.
    Ronald 0. Habitzreiter, Douglas A. Bender, Bender, Walter & Wahlberg, Austin, for appellants.
    Gary F. DeShazo, Davis, DeShazo & Gill, Austin, for appellees.
   COLLEY, Justice.

On August 21, 1979, plaintiffs/appellees, David R. Crocker, R.D. Crocker, F.M. Fil-lingim and Richard Fillingim, filed suit against defendants/appellants, Don Nicholas and Charles Cannon, seeking monetary and exemplary damages for alleged fraudulent misrepresentations made by defendants during a course of dealings between the parties wherein defendants sold to plaintiffs fractional working interests in two oil and gas leases in Brown and East-land Counties; plaintiffs also sought treble damages under the Deceptive Trade Practices and Consumer Protection Act (Section 17.41, et seq., Tex.Bus. & Com.Code).

Plaintiffs alleged in their original petition that they each purchased a small fractional working interest in one or more of four oil and gas wells drilled by defendants, viz., Crenshaw No. 1, Crenshaw No. 2, Cren-shaw No. 8, and Anderson No. 1 under the oil, gas and mineral leases; plaintiffs also alleged in the original petition that none of the wells were commercial producers.

On June 27, 1980, plaintiffs filed their first amended original petition asserting for the first time a cause of action based on defendants’ violation of the Texas Securities Act, Article 581-1, et seq., Tex.Rev. Civ.Stat.Ann. (Vernon 1964). More specifically, plaintiffs alleged in the amended petition that the interest sold them by the defendants in the wells were securities under the provisions of Article 581-4 of the act and “... were not registered and— were not sold by a licensed person....” Plaintiffs also alleged that the acts and conduct of the defendants relating to the sale and offer of the working interest in such wells to plaintiffs violated the provisions of Article 581-33 A(l) and (2), thereby rendering defendants liable to plaintiffs for the amounts paid for the working interest and a reasonable attorney’s fee.

The case went to trial before the court without a jury on August 4, 1980; on May 13, 1981, judgment was rendered and signed in favor of all plaintiffs in the aggregate sum of $42,409.66 for damages and prejudgment interest, attorney’s fees in the amount of $2,500.00, and all costs of suit.

Defendants present eighteen points of error challenging the legal and factual sufficiency of the evidence to support the judgment, and complaining of the award of attorney’s fees and the denial of their plea of limitation against that part of the plaintiffs’ cause of action seeking rescission as to the Crenshaw Wells Nos. 1 and 2, as well as other trial error. We reverse and remand in part, and affirm in part.

In order to put the issues in proper focus, it must be understood that the sale to the plaintiffs of the various interests in the four wells were made as follows:

Crenshaw No. 1 May 23,1977 David Crocker only
Crenshaw No. 2 June 22,1977 David Crocker, R.D. Crocker & Richard Fillingim
Crenshaw No. 3 August 10,1977 Richard Fillingim and F.M. Fillingim
Anderson No. 1 October 13,1977 David Crocker, R.M. Fillingim & Richard Fillingim

A careful reading of the record demonstrates that the Crenshaw wells were drilled in an area in which various producing oil and gas wells had been completed prior to the drilling of defendants’ Cren-shaw No. 1. The Anderson well was also drilled in an area where producing gas wells were located. These facts were established by exhibits furnished plaintiffs by the defendants and introduced into evidence by the plaintiffs. A careful analysis of David Crocker’s testimony reveals that before his investment in Crenshaw No. 1 that defendant Nicholas “... indicated that the test that had been run ... reflected that it was a good well.” Sometime after plaintiff David Crocker made his investment in the first well, and before he invested in any subsequent well drilled by the defendants, he testified that he received additional written information on the Bro-oksmith, Marble Falls Reef Field in Brown County, in which field all three Crenshaw wells were drilled and completed by the defendants (plaintiffs’ exhibit No. 8). The information consisted of a report from Sid Sers who sold the Crenshaw leases to the defendants. The report purported to provide a “synopsis” of the “potential of” the Crenshaw leases and stated that production rates of several gas wells in the field varied greatly; and significantly, contained the statement, “therefore, it must be understood that in order to find large volumes of gas one must drill.” The report also concluded that the acreage covered by the defendants’ Crenshaw leases were “definitely — development acreage.” Also included in the information furnished to plaintiff David Crocker was a copy of a July 1976 drill stem test on a well in the Brooksmith field and a map and copies of a log of one of the wells offsetting the Cren-shaw lease. The record shows that while all four wells involved in this dispute were drilled and completed, none were commercial producers; and that none of the plaintiffs received any income on either oil or gas therefrom except plaintiff David Crock-er who received $560 from the Anderson No. 1 well.

Before any investments were made by any of the plaintiffs in the Anderson No. 1 well, David Crocker received a letter from defendants regarding the prospects of said well. A map of the area was also enclosed. In summary, the correspondence discussed three separate wells, two gas wells and one oil well producing gas and oil in the area of the proposed drilling site for the Anderson well No. 1, and stated that one gas well had a potential of producing 3,700,000 cubic feet of gas per day, and the other had a potential of 17,000,000 cubic feet per day. The letter represented the Anderson well as a “... lake sand project that has a good chance for production.” Essentially, all the negotiations for the sales of these interests were between the defendants and David Crocker. Plaintiffs F.M. Fillingim and Richard M. Fillingim testified that they relied on the judgment of David Crocker. However, David Crocker testified that he had no involvement with anyone regarding the Crenshaw No. 3 well and had no participation in the well of any kind. R.D. Crock-er did not testify or appear at trial. R.D. Crocker is David Crocker’s father, and Richard M. Fillingim is David Crocker’s father-in-law. F.M. Fillingim is a brother of Richard M. Fillingim.

David Crocker also testified that subsequent to the drilling of each Crenshaw well and after the plaintiffs’ investments in Crenshaw wells Nos. 1 and 2, defendants kept telling him that such wells were good wells capable of producing.

The trial court’s judgment is based on defendants’ violations of the Texas Securities Act, Article 581-33 A(l) and (2), Tex. Rev.Civ.Stat.Ann. (Vernon 1964) and (Vernon Supp.1984), and clearly denies recovery to plaintiffs under any other theory.

The trial court at defendants’ request made and filed findings of fact and conclusions of law. Thus, in our review of the record, and defendants’ points of error, we follow the well-established rules in considering defendants’ factual insufficiency points that findings of specific facts are tested on appeal in the same manner as jury findings upon special issues; and, that a trial court’s findings have the same force and dignity as jury findings. Hence, a trial court’s finding of fact will not be disturbed on appeal unless the evidence is factually insufficient to sustain a specific finding or the findings are so contrary to the overwhelming weight of the evidence as to be manifestly wrong. 4 R. McDonald, Texas Civil Practice in District and County Courts § 16.05 p. 11 (Rev.1971); Paul v. Johnson, 314 S.W.2d 338 (Tex.Civ.App. — Houston 1958, writ dism’d); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We first address defendants’ points of error 8 and 13 by which they contend that the transactions were exempted from registration under the Securities Act pursuant to the provisions of Article 581-5 Q, and that the causes of action under Article 581-33 A(l) and (2) as to the Crenshaw wells Nos. 1 and 2 were barred by limitations under Article 581-33 C.

Earlier in the opinion we set forth the allegations contained in plaintiffs’ original and first amended petitions filed on August 21, 1979, and June 27, 1980, respectively. Since the original petition is not subject to the plea of limitations, and the first amended original petition is not based on “a new distinct or different transaction and occurrence,” neither is the amended petition subject to the plea of limitations asserted by defendants. Article 5589b, Tex.Rev.Civ.Stat.Ann. (Vernon 1958); Leonard v. Texaco, Inc., 422 S.W.2d 160, 166 (Tex.1967). Defendants’ point of error 13 is overruled.

Under Rule 299, Tex.R.Civ.P., where one or more factual elements of a theory of recovery or defense have been expressly found by the trial court, “... omitted unrequested elements where supported by evidence, will be supplied by presumption [by the appellate court] in support of the judgment.” (Emphasis supplied.) F.R. Hernandez Const. v. National Bank of Commerce, 578 S.W.2d 675 (Tex.1979). In the case at bar, the trial court made various express findings that at various times the defendants made statements to plaintiffs that the Crenshaw wells Nos. 2 and 3 were “good wells”; that Cren-shaw well No. 1 was the “best well in the field and that Crenshaw No. 2 well would be just as good”; that Crenshaw No. 2 “had been drilled and tested and it was a good commercial well.” These express findings do not include a finding that such statements were made before the sales in each well were made by the defendants to the various plaintiffs. Article 581-33 A(2) (Vernon 1964) renders a defendant liable to a plaintiff if the defendant sells a security “... by means of an untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made not misleading....” (Emphasis supplied.) We construe this statute to mean that in order for the plaintiff/buyer to prevail, he must introduce evidence that the untrue statements relate to the security purchased and induced the purchase thereof. Thus untrue statements made about a security by a seller to the buyer thereof at a time when the buyer has already purchased the security are not the “means” by which the security was sold. It follows then, that if a buyer was not induced to purchase a security by an untrue statement made after the purchase, he could not have been misled thereby, and no further statements respecting such security are required to explain the original statement so made under the provisions of the above statute.

Finding of fact No. 25 reads: “Defendants represented to Plaintiffs that the Anderson No. 1 Well was an outstanding opportunity and would produce 10,000 to 17,-000 million [sic] cubic feet of gas per day.”

Finding of fact No. 27 reads: “Defendants failed to explain to David R. Crocker, Richard M. Fillingim and F.M. Fillingim why they did not recover any return on their investments on the Anderson No. 1 Well, although Defendants were asked for an explanation on many occasions.”

Upon a consideration of all the evidence, we conclude that the trial court’s implied findings that the transactions between the parties were not exempt from registration under the Texas Securities Act arising from findings of fact Nos. 30 and 31 that the working interest sold in the wells were not registered under the Texas Securities Act, and that none of the defendants were licensed by the Securities Commission, is against the overwhelming weight of the evidence. The record reveals without dispute that the interests sold to the plaintiffs resulted from personal and private dealings between defendant Nicholas and plaintiffs David Crocker and Richard M. Fillingim. There is no evidence that public solicitation or advertising was resorted to by the defendants. In fact, as we construe it, the record shows that plaintiff David Crocker initially sought out Nicholas after learning of the prospective drilling operations to be conducted by the defendants through a fellow officer in the bank where Crocker worked. Further, the evidence conclusively shows that the total numbers of sales by the defendants (joint owners) in each Crenshaw well and in the Anderson lease were less than thirty-five. Plaintiffs argue that since more than thirty-five separate sales of working interests in the Crenshaw leases were made by defendants, that the interests sold in the three Crenshaw wells were not exempt from registration under the Securities Act. The question appears to be one of first impression. Article 581-5 Q reads in pertinent part as follows:

“Except as hereinafter in this Act specifically provided, the provisions of this Act shall not apply to the sale of any security when made in any of the following transactions and under any of the following conditions, ... that is to say, the provisions of this Act shall not apply to any sale, offer for sale, solicitation, subscription, dealing in or delivery of any security under any of the following transactions or conditions:
Q. The sales of interest in and under oil, gas or mining leases, fees or titles, or contracts relating thereto, where (1) the total number of sales by any one owner of interests, whether whole, fractional, segregated or undivided in any single oil, gas or mineral lease, fee or title, or contract relating thereto, shall not exceed thirty-five (35) within a period of twelve (12) consecutive months; and (2) no use is made of advertisement or public solicitation; — ” (Emphasis added.)

In this case, it is undisputed that fewer than thirty-five separate sales of working interest were made by defendants in each of the three Crenshaw wells. Each well was drilled on a segregated twenty-acre tract out of the Crenshaw leasehold estate, and the interest sold was limited to the well and the acreage surrounding it. It is undisputed that fewer than thirty-five separate sales were made by the defendants in the Anderson lease in Eastland County. In addition, as earlier noted, no public solicitation or advertisement was carried out by the defendants in negotiating the sale of the interest in any of the four wells here involved. Thus on these facts, we conclude that under the provisions of Subdivision Q of Article 581-5 the sales of the interest in the three Crenshaw wells and the Anderson lease are exempt from registration under the Texas Securities Act. The assignments of the working interest in each individual well amounted to a “... sale of interest [in] a contract relating ...” to the underlying oil, gas and mineral leases covering the Crenshaw lands. Point 8 is sustained.

The record reveals that all oral representations made to David Crocker by defendant Nicholas respecting the prospects of production from Crenshaw wells Nos. 2 and 3 and Anderson well No. 1 were made after the investments had been made by the various plaintiffs therein. The Cren-shaw well No. 1 had been drilled and tested on May 19, 1981, and David Crocker invested therein on May 23, 1981. The evidence is sufficient to support the trial court’s findings of fact 5(b)(c) and 9. Defendants’ point of error No. 4 is overruled.

Plaintiffs argue that following the drilling and completion of the Crenshaw wells Nos. 2 and 3, defendants continually represented to the plaintiffs that each such well was a “good well” and would produce gas in commercial quantities and that such representation constituted untrue statements of material facts entitling them to rescission on each of these wells. Plaintiffs’ argument, in effect, is that after the completion of Crenshaw No. 1, the plaintiffs were informed that it was a good well and plaintiffs were thereby induced to invest in Crenshaw No. 2, offsetting No. 1 and so on. In other words, plaintiffs relied on defendants’ representations that each prior well was a “good” well with high potential as an untrue statement by means of which they were led to invest in the drilling of the next well in the drilling program of defendants. Plaintiff David Crocker testified, however, on cross-examination, that “... because I felt that No. 1 (Crenshaw) would pay back for No. 1 and No. 2 (Crenshaw), I went ahead and invested in No. 2.” Crocker also testified on cross-examination when questioned about defendants’ representations about Cren-shaw No. 2, that he was told that No. 2 would be an offset well to No. 1 and “... the likelihood of success was very good. No assurances, no guaranties....” There is no evidence in the record' tending to prove that the producing wells adjoining the Crenshaw and Anderson leases were not as represented to the plaintiffs by the defendants; nor is there any evidence in the record contradicting the truth of any test results produced by the defendants to the plaintiffs respecting the four wells, excepting only Crenshaw well No. 1. On this record excepting the representations made as to the Crenshaw well No. 1, we find no statements were made by the defendants to any plaintiff of material facts before the respective sales of interest in the wells to the various plaintiffs which have been proved to be untrue by the evidence respecting such wells. David Crocker is a lawyer and a banker, and he was admittedly aware of the risks inherent in oil and gas ventures. His admissions are demonstrative of a fact well known to reasonably intelligent persons: that oil and gas ventures are at best highly speculative and fraught with high risk. We further note that none of the findings of fact by the trial judge expressly find that the statements and representations made by the defendant Nicholas to the plaintiffs respecting the Crenshaw wells Nos. 2 and 3 and the Anderson well No. 1 were made prior to the investments therein by the various plaintiffs. This being true, the express findings do not support the judgment rendered.

For the reasons stated we sustain defendants’ points of error 1, 2, and 3 by which they contend that the findings of the trial court, both express and implied, as to the untrue statements and omissions as to Crenshaw wells Nos. 2 and 3 and Anderson well No. 1, are against the great weight of the evidence.

Because of our ruling on the points discussed, we do not address defendants’ remaining points.

That part of the judgment dated May 13, 1981, awarding plaintiff David Crocker the sum of $2,700.00 with accrued interest to that date at the rate of 6% per annum in the amount of $643.56, together with post-judgment interest at the rate of 9% per annum on the amount of $3,343.56, is affirmed; otherwise, the judgment of the trial court is reversed and the cause is remanded to that court for a new trial.

SUPPLEMENTAL OPINION

Appellees have urged ten points of error in their Motion for Rehearing in this cause. Under points 1 and 2, appellees contend that in our disposition of their evidentiary points of error, we erroneously reasoned that appellees had the burden of disproving the exempt status of the transaction between the parties under the provisions of Article 581-5 Q of the Texas Securities Act. The offending sentence, giving rise to such argument, appears on Page 368 of our opinion and reads: “There is no evidence that public solicitation or advertising was resorted to by the defendants.” We recognize that such sentence perhaps represents an unfortunate choice of words and could be construed as implying that we were commenting on the appellees’ failure to negative the exemption contrary to the provisions of Article 581-27 of the Texas Securities Act. However, as is made clear by the language on Page 368, both preceding and following such sentence, we, in fact, held that the evidence produced at trial from all sources clearly establishes that no public solicitation or advertisement was involved in the offer and sale of the interest by appellants to appellees.

We have as well carefully reviewed the remaining eight points of error assigned by appellees in their Motion for Rehearing and find them without merit.

Appellees’ Motion for Rehearing is overruled.

      . Articles refer to Texas Civil Statutes Annotated (Vernon).


author: JUNELL, Justice.

text:
    Donald Wayne PERRYMAN, Appellant, v. STATE of Texas, Appellee.
    No. C14-84-365CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 27, 1984.
    Rehearing Denied March 21, 1985.
    J. Gary Trichter, Luis F. Suarez, Houston, for appellant.
    William J. Delmore, III, Houston, for ap-pellee.
    Before JUNELL, PAUL PRESSLER and MURPHY, JJ.
   OPINION

JUNELL, Justice.

Appellant pled no contest to an information charging him with the misdemeanor offense of driving while intoxicated. The court found him guilty and assessed punishment at 120 days in jail, probated for two years, and a $450.00 fine. Appellant in two grounds of error contends that the trial court erred in denying his written motion to quash the information. He has preserved his right to appeal in accordance with Tex.Code Crim.Proc.Ann. art. 44.02 (Vernon 1979).

In his first ground of error appellant contends that the information did not adequately notify him of the offense charged so that he could prepare his defense. The offense allegedly occurred January 15, 1984, so the amended DWI statute effective January 1, 1984, applies. Tex.Rev.Civ. Stat.Ann. art. 6701Z-1 (Vernon Supp.1984).

The information alleges that he did “unlawfully while intoxicated, namely, having an alcohol concentration of at least 0.10 percent in his body, drive and operate a motor vehicle in a public place.” Under Article 6701Í-1 intoxicated means an alcohol concentration of 0.10 percent or more. Alcohol concentration is defined in terms of the number of grams of alcohol per 100 milliliters of blood, 210 liters of breath or 67 milliliters of urine. Appellant complains that the information should have specified whether the alcohol concentration was determined through analysis of blood, breath or urine samples.

A charging instrument must give the accused precise notice of the “nature and cause of the accusation against him.” Tex. Const.Ann. art. I § 10 (Vernon 1984). When a statute defining an act or omission provides more than one manner or means to commit the prohibited act or omission, upon timely request, the state must allege the particular manner or means it seeks to establish. For example, the state must specify in a delivery of heroin case whether delivery was by offer to sell or by actual transfer. Ferguson v. State, 622 S.W.2d 846 (Tex.Crim.App.1981) (en banc on rehearing). In a theft case, the state must set out the manner in which the defendant appropriated the property. Gorman v. State, 634 S.W.2d 681 (Tex.Crim.App.1982). When kidnapping is alleged, the state must delineate in which of two statutorily defined ways the defendant was alleged to have abducted the complainant. Gibbons v. State, 652 S.W.2d 413 (Tex.Crim.App.1983).

The state need not clarify a charging instrument when the term challenged does not go to an act or omission of the defendant. Therefore, in alleging theft the state need not specify what theory it will use to show lack of effective consent of the owner or what theory of ownership will be used to show that the property was taken from the owner. Thomas v. State, 621 S.W.2d 158 (Tex.Crim.App.1981) (on rehearing).

We hold that specifying how the accused’s alcohol concentration was measured does not concern the manner in which the offense was committed. Rather, the means of measurement would only inform the accused about the type of evidence the state intended to present at trial. In other words, this case falls under Thomas v. State, and not Ferguson v. State. The first ground of error is overruled.

In his second ground of error, appellant argues that the information is fatally defective because it fails to allege the offense of driving while intoxicated. Appellant reasons that the statute defines alcohol concentration in terms of urine, blood and breath samples so that an allegation concerning concentration in the body does not allege intoxication. The appellant’s argument is without merit. Testing of the blood, urine or breath specimens is simply a way of sampling what is in the body as a whole. The clear meaning of the statute is that a person is intoxicated when he has too much alcohol in his body. The language of the information need not track the statute exactly. Queen v. State, 662 S.W.2d 338, 341 (Tex.Crim.App.1983) (en banc). The second ground of error is overruled and the conviction affirmed.


author: KEITH, Justice (Retired).

text:
    Garland E. POLLARD, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-01161-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 2, 1985.
    Rehearing Denied March 13, 1985.
    Robert Lemmons, Melvin C. Bruder, Dallas, for appellant.
    Michael A. Klein, Asst. Dist. Atty., Dallas, for appellee.
    Before CARVER, SHUMPERT and KEITH
       JJ.

      . The Honorable Quentin Keith, Justice, Ninth Supreme Judicial District, retired, sitting by assignment.

   KEITH, Justice (Retired).

On appeal to the county court, appellant was convicted by the jury in a trial de novo on his plea of guilty to a charge of sleeping and dozing in a public place in violation of DALLAS, TEX., REV.CODE OF CIV. AND CRIM. ORDINANCES § 31-13 (1960). Punishment was assessed by the court at a fine of $101.00. In two grounds of error, appellant contends that the complaint should have been quashed for failure to allege a culpable mental state, and that such defect renders the complaint fundamentally defective. Because we agree that the complaint is invalid, we reverse appellant’s conviction and dismiss the complaint.

Although no statement of facts was provided to this court, the only facts relevant to this appeal can be gleaned from the complaint. Appellant was found asleep in a public area of the restaurant located at 4400 North Central Expressway, Dallas, Texas.

Appellant urges that the complaint is fundamentally defective due to its failure to allege a culpable mental state. We agree. TEX. CONST, art. XI, § 5 requires that “no [city] charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of this State, or of the general laws enacted by the Legislature of this State.” The ordinance provides, in relevant part, that “[a] person commits an offense if he ... sleeps or dozes in a street, alley, park, or other public place.” There is no mention of any required mental state. TEX.PENAL CODE ANN. § 6.02(a) and (b) (Vernon 1974) read as follows:

(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

Therefore, if enforced without the requirement of a culpable mental state, the ordinance would be inconsistent with section 6.02(a) and as a result, unconstitutional. However, section 6.02(b) supplies the required mental state by providing that unless the definition of the offense plainly dispenses with any mental element, a culpable mental state is required. The definition of sleeping in public does not plainly dispense with any culpable mental state because it fails to mention mental state at all. Consequently, section 6.02(b) applies and adds the requirement of a culpable mental state to the definition of the offense. Since, as a result, a culpable mental state was an element of the offense of sleeping in public, the failure to allege that element renders the complaint fundamentally defective. Honeycutt v. State, 627 S.W.2d 417, 421 (Tex.Crim.App.1981).

The State has asserted that DALLAS, TEX.REY.CODE OF CIV. AND CRIM. ORDINANCES § 1-5.1 (1960) serves to plainly dispense with a culpable mental state by providing that “[a] culpable mental state is not required for the commission of an offense under this Code unless the provision defining the conduct expressly requires a culpable mental state.” However, we are unable to consider whether Section 1-5.1 accomplishes that result, since a copy of that ordinance is not properly in the record before us. Where a city ordinance is relied on, proof of the ordinance is essential since we cannot take judicial notice of the existence or terms of a city ordinance. Green v. State, 594 S.W.2d 72, 74 (Tex.Crim.App.1980).

Accordingly, since we have held the complaint is void, the judgment is reversed and the complaint is ordered dismissed.