RICKEY NORRIS MARTIN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed October 18, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01242-CR
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RICKEY NORRIS MARTIN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F88-81632-TL
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OPINION PER CURIAM
Before Justices Whitham, Baker and Ovard
        Rickey Norris Martin appeals his jury conviction for theft by receiving stolen property for which the jury assessed punishment at forty years' confinement. In his sole point of error, appellant contends that the evidence is insufficient to support the conviction. We affirm.
        The complainant testified that he was the owner of a maroon 1986 Toyota Cressida automobile. On April 24, 1988, he stopped at a convenience store and because he anticipated being in the store for only a short time, he left the car running with the keys in the ignition. He also left his wallet containing credit cards and his driver's license in the car. When he came out of the store, his car was gone. He did not see anyone take the car, so he could not say who had stolen it.
        Officer Sherry Phillips of the Longview Police Department testified that on May 3, 1988, she and other officers were watching a maroon Cressida, the complainant's car, because the Longview Police Department had received a report that the car had been stolen. The car was parked in the front yard of Carl Lee Nickerson's house. Officer Phillips watched a man she identified as appellant leave the house and approach the car. She saw appellant open the passenger door and then walk behind the car. She saw the trunk open, but could not tell what appellant was doing because the car blocked her view. Officer English, who had the car under surveillance from another location, testified that appellant opened the door with a key, then opened the trunk and placed what appeared to be clothing in the trunk. Appellant then went back into the house. Two girls drove up in a tan car and went into the house. The two girls left shortly, and four men also exited the house. Three men drove away in another car and one left on foot. Appellant did not leave the house.
        Officer Phillips and two uniformed officers then approached the house. Appellant opened the door, brushing his teeth. Officers Phillips and English placed appellant under arrest and asked for identification. Appellant said he did not have any identification. The officers noticed a billfold sticking out of appellant's left back pocket. Officer English pulled it out to look at it. It contained indentification and credit cards bearing the name of the complainant. Officer English also found some car keys in appellant's right front pocket. He later tried the keys on the Toyota Cressida and the keys opened the doors and started the car.
        Appellant testified that he lived and worked in Dallas. He went to Longview to work a job unloading a moving van. After he completed the job, he went to the bus station to take the bus back to Dallas. A lady at the bus station told him that there were no buses to Dallas until 9:30 the next morning. Appellant called his friend Carl Lee Nickerson, and stayed the night at Nickerson's house. The Toyota Cressida was at Nickerson's house when he got there and he thought the car belonged to Nickerson. The next morning, Nickerson gave him the keys to the car and told him he could get toothpaste and a new toothbrush from the trunk. He also asked appellant to get his uncle's wallet from the car and give it to his uncle when he came by. Two girls came by and asked for Uncle Carl. The girls told them that the police were watching the house. The two girls, Nickerson and the three other men, whom appellant claimed he did not know, left the house. Appellant testified that he did not leave because there was no reason for him to run as he had not done anything. Appellant admitted having three prior felony convictions, and the State established that appellant had been convicted of four other felonies, which appellant denied.
        In rebuttal, the State called Carl Lee Nickerson. Nickerson testified that he met appellant when they were both in the penitentiary. He saw appellant on May 3. Appellant was driving a burgundy Toyota Cressida and a man known to Nickerson only as Albert, Jr., was with him. Nickerson got in the car and rode around with them. Appellant told Nickerson that his mother had made the down payment on the car so that appellant would stay out of trouble. Nickerson testified that he did not believe that appellant's parents had bought him such a nice car. Nickerson admitted that he was currently serving thirty years in the penitentiary for possession of cocaine and heroin and that he had also been convicted of voluntary manslaughter.
        The indictment in this case alleged theft by receiving stolen property. The elements of theft by receiving are: a person, with the intent to deprive the owner of property, appropriates property, which is stolen property, knowing it to be stolen, by another. Polk v. State, 749 S.W.2d 813, 816 (Tex. Crim. App. 1988). In his sole point of error, appellant contends that the evidence is insufficient to support his conviction. Appellant's argument is two-fold: he contends that the evidence shows, at most, that appellant himself stole the car; alternatively, he avers that the evidence fails to show that he had knowledge that the car found in his possession was stolen. The standard for appellate review of the sufficiency of the evidence is to view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988); Garrett v. State, 682 S.W.2d 301, 304 (Tex. Crim. App. 1984), cert. denied, 471 U.S. 1009 (1985).
        Appellant first suggests that he is not guilty of receiving stolen property because the evidence shows that he himself took the car. One cannot be guilty of receiving property which he himself has stolen. Hochman v. State, 146 Tex. Crim. 23, 170 S.W.2d 756, 759 (1943). We note, however, that the record gives no indication at all who took the car. The complainant testified that he did not see who took the car. Further, appellant testified that he did not steal the car. The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony and may accept or reject any or all of the testimony of the witnesses for either the State or the accused. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). The jury was entitled to believe that appellant had not taken the car and that it had, in fact, been stolen by another. We conclude that the evidence is not insufficient for this reason advanced by appellant.
        Appellant next argues that the evidence fails to establish that he knew the car was stolen when he possessed it. Proof of such knowledge is an essential element of theft by receiving. Ehrman v. State, 580 S.W.2d 581, 583 (Tex. Crim. App. 1979). While unexplained possession of recently stolen property will not alone support an inference of guilt of theft by receiving, it may, when coupled with other facts, justify a conclusion that one received stolen goods with knowledge that the property was stolen. Hynson v. State, 656 S.W.2d 460, 462 (Tex. Crim. App. 1983); Robinson v. State, 728 S.W.2d 858, 863 (Tex. App. -- Austin 1987, no pet.). In addition to the recent possession of this stolen car, appellant had possession of the complainant's wallet, containing the complainant's identification and credit cards, which the complainant testified was in his car when it was stolen. Further, appellant's explanation for possession of the car keys and wallet was rebutted by Nickerson's testimony and Nickerson further testified that appellant had given him yet another explanation for possession of the car. Appellant's possession of the wallet, together with the conflicting explanations he gave for possession of the car, are other significant factors sufficient to justify the conclusion that the appellant knew the automobile to be stolen.
        We conclude that the evidence is sufficient to support appellant's conviction for theft by receiveing stolen property. Accordingly, we overrule appellant's sole point of error and affirm the judgment of the trial court.
 
                                                          PER CURIAM
Do Not Publish
Tex. R. App. P. 90
881242.U05
 
 
 
File Date[10-17-89]
File Name[881242]