Is Testimony of the Owner of Stolen Property Mandatory ?
In Araiza v. State, 555 S.W.2d 746 (Tex. Crim. App. 1977) Araiza was accused of burglarizing the residence of C. D. Loop.
Loop did not testify, but his wife and son testified that they did not give consent to Araiza's entry.
In reversing Araiza's conviction, the court wrote that "it was incumbent upon the state to prove ownership and lack of consent as alleged in the indictment.
The failure to call C. D. Loop or to offer other evidence of his lack of effective consent . . . rendered the evidence insufficient." Id. at 747.
Araiza merely stands for the proposition that ownership and lack of consent must be proved as alleged. See Miller, 909 S.W.2d at 596.
In Taylor v. State, 508 S.W.2d 393 (Tex. Crim. App. 1974), the court overruled opinions holding that lack of consent could not be proved circumstantially unless direct evidence was unavailable.
The court held that "proof of lack of consent to the entry and taking of personal property in prosecutions for burglary . . . or theft may be made by circumstantial evidence the same as any other issue in a criminal case may be proved by circumstantial evidence." Taylor, 508 S.W.2d at 397.
In Williams v. State, 591 S.W.2d 873, 875-76 (Tex. Crim. App. 1980), the court, citing Taylor, held that the circumstantial evidence was sufficient to prove that the owner of stolen property did not consent to the taking even though the owner did not testify.
In Williams, the defendant was prosecuted for shoplifting a dress from a department store.
Ownership was alleged in the store manager, who did not testify.
Instead, the apparel manager for the store testified that he saw the defendant take a dress from a hanger, put it inside his coat, and leave the store. See id. at 874.
The court found this testimony sufficient to prove the named owner's lack of consent.
"It is a completely unreasonable hypothesis that a person who had the consent of the owner of a store to take a dress would hide it under his coat after removing it from the rack and depart from the store with it almost completely concealed under his clothing.
We conclude that the circumstantial evidence . . . supports the court's finding." Id. at 876.