Joe Gary Rivas, Jr. v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-91-119-CR JOE GARY RIVAS, JR., APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. CR90-0254-B, HONORABLE DICK ALCALA, JUDGE PER CURIAM A jury found appellant guilty of theft by receiving stolen property having a value of at least $750 but less than $20,000. Tex. Penal Code Ann. § 31.03 (Supp. 1992). The district court assessed punishment, enhanced by a previous felony conviction, at imprisonment for eighteen years and a $5000 fine. The Tres Rios Trading Post in San Angelo was burglarized on the night of March 15, 1990. Many items were taken, including jewelry, knives, swords, and shirts. Charles Robertson later confessed to police that he was the burglar, and he testified for the State at appellant's trial. Robertson testified that he took the stolen goods to appellant, who was to sell them for him. Robertson testified that he told appellant the items were stolen. Most of the stolen property was recovered during a search of appellant's house and garage. Appellant does not contest the sufficiency of the evidence. Police recorded a telephone conversation between Robertson and appellant. During this conversation, Robertson told appellant that he had some "real hot" guns. Appellant replied that he wanted them, and agreed to pay Robertson $50. By point of error, appellant contends the district court erred by admitting this portion of the recording because Robertson in fact did not have guns for sale, the purpose of the conversation was to trap appellant, and the evidence was irrelevant. Although appellant objected to the admission of the tape, he did not state a ground for the objection. Thus, he failed to preserve this point for appeal. Tex. R. Crim. Evid. Ann. 103 (Pamph. 1991). In any event, the evidence was relevant and admissible to prove appellant's knowledge. To convict appellant, it was necessary for the State to prove that he appropriated the property knowing it was stolen. Evidence that he was willing to purchase other stolen property was a circumstance tending to prove that element of the State's case. The point of error is overruled. Appellant next complains of the admission in evidence of a sword. Appellant contends that the sword was inadmissible because it was not one of the stolen items described in the indictment. Brent Philen, owner of the Trading Post, identified the sword and testified that it was taken during the burglary. It was res gestae of the burglary, and the court did not err by admitting it. Dorsett v. State, 496 S.W.2d 98 (Tex. Crim. App. 1973). Finally, appellant urges that the district court erred by refusing to permit him to ask Philen if he owed his landlord money. Appellant does not explain why he thinks this question was relevant. Appellant testified that he owned the building in which the Trading Post was located. If he wanted to claim that he had taken Philen's property in lieu of rent he could have done so in his own testimony. He did not. Instead, appellant testified that he gave Robertson permission to store property in his garage. According to appellant, he believed that the property in question belonged to Robertson, did not know that it belonged to Philen, and did not know that it was stolen. No error is presented. The judgment of conviction is affirmed. [Before Justices Powers, Jones and B. A. Smith] Affirmed Filed: February 5, 1992 [Do Not Publish]