¶1finds that because the Court of Appeals has correctly decided that a rational trier would not find the evidence sufficient, and the theory used by the State was not the exclusive theory, he votes to put this Court’s “improvidently granted stamp” to the State’s petition for discretionary review.
¶2dissenting.
¶3When a panel of three judges of the Dallas Court of Appeals, or any other court of appeals for that matter, unanimously finds circumstantial evidence is insufficient to support a judgment of conviction, my position as member of this discretionary review court is that such finding is entitled to a respectable measure of deference. For that there is supportive constitutional rationale in Article V, § 6. Compare, e.g., Hall v. Villareal Development Corp., 522 S.W.2d 195 (Tex.1975).
¶4There are also sound policy considerations. Without a full discourse on that subject, suffice to point out that review functions of this Court are different from appellate functions of courts of appeals.
¶5A direct appeal court primarily examines asserted error in trial court and its impact on rights of accused; secondarily, it undertakes to find the law when there is none on point, interpreting statutes, applying constitutional principles and developing the common law, if need be. Judge Shirley M. Hufstedler calls the first a “corrective function” and the second “institutional functions.” Hufstedler, New Blocks for Old Pyramids: Reshaping the Judicial System, 44 S.Cal.L.Rev. 901, 910-911 (1971).
*687“With each rise in the appellate structure, the importance of the review for correctness function diminishes and the importance of the institutional function increases. For instance, by the time discretionary review has been granted in the Supreme Court of the United States, the corrective function has been almost totally eclipsed by the institutional function, apart from criminal cases in which the death penalty has been imposed.” Ibid.
¶6As highest court of resort in criminal cases in its state wide jurisdiction, reviewing decisions of fourteen court of appeals, this Court has deliberately cast itself in a role like that played by the Supreme Court. Tex.R.App.Pro.Rule 200. Its stated concern is that legal reasons given for decisions by an intermediate court be of significance and free of conflict. Ibid.Only when a court of appeals has “so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court,” are we to exercise exceptional “power of supervision.” Id.,Rule 200(c)(6). Carrying out our own role, with Justice Jackson, in all but substantial federal questions Judges must remind themselves that “we are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469 (1953) (concurring opinion).
¶7In the instant cause the opinion of the Court says at the outset:
“The [Dallas Court of Appeals] found the evidence insufficient to support the conviction and reversed. Beardsley v. State, 696 S.W.2d 214 (Tex.App.—Dallas 1985). We disagree.”
¶8The factual statement and discussion that follow indicate to me at least that an essential basis for disagreement is merely in interpretation and emphasis of certain facts. One example is the matter of appellant’s remarks upon hearing report over Officer Barker’s radio that the red Chevrolet was listed as stolen. The Dallas Court of Appeals related:
“Beardsley gave two false names and stated that he did not know the car was stolen. He claimed that he was ‘just a hitchhiker.’ ”
¶9Beardsley v. State, supra, at 214-215. It did not further notice the matter. The opinion of this Court, however, embellishes the incident by recounting more testimony from Officer Baker, viz:
“The officer testified that Beardsley’s shoulders drooped and his face sagged upon hearing the report and said, “I didn’t know the car was stolen. I’m just a hitchhiker.”
¶10Majority opinion, at 683.
¶11Demonstrating at page 684 that his alibi is “in conflict with other evidence,” the opinion demeans the weight of Long’s testimony, finds appellant possessed a credit card with which gasoline was purchased May 1 (by someone not identified) and concludes:
“Beardley’s statement to the arresting officer that he was ‘just a hitchhiker’ is also in conflict with his alibi.”
¶12Id., at 684. Finally at 684, the incident is iterated vehemently, viz:
“Moreover, when questioned by the officer, Beardsley gave two false names and denied knowledge of the theft, deliberately lying when he stated ‘I’m just a hitchhiker.’ ”
¶13Appellant may not earn high marks for credibility in speaking to a police officer, but he did not testify, and to attribute to that remark such a high degree of incrimination is to say he is guilty because he is a liar. Just as we are coming around to understand that value of evidence adduced by the State is not enhanced by disbelieving testimony of an accused, Wright v. State, 603 S.W.2d 838 (Tex.Cr.App.1980) (Opinion on Rehearing, at 840), so also that a statement by accused is believed to be false does not constitute affirmative evidence to prove the State’s case.
¶14The gravamen of theft is in depriving a true owner of value or enjoyment of his property, by exercising control over it without his consent. McClain v. State, *688687 S.W.2d 350, at 353 (Tex.Cr.App.1985). The opinion of the Dallas Court of Appeals concentrates on meaning and application of the term, “exercise of control,” and found evidence insufficient to prove that appellant exercised control over the car after it was stolen. The majority here never focuses on that particular element. Instead, at page 684, it undertakes to demolish his alibi defense, as if a failed defense somehow supplies proof of an essential element of an offense that must be shown beyond reasonable doubt. Unanswered is the finding below that evidence of “exercise of control” is insufficient.
¶15Finally, on the matter of evidentiary sufficiency to show appellant acted as a party with someone, presumably James Montgomery, his “knowledge of the true nature of the car,” Majority opinion, at 684, means only that he knew Montgomery was exercising control over a stolen automobile. It does not prove that with “intent to promote or assist” his exercising such control, appellant solicited, encouraged, directed, aided or attempted to aid Montgomery in doing so. Nor does the fact that appellant “had substantial contacts with the stolen car,” id., at 685, make him a party. That fact may distinguish Wygal v. State, 555 S.W.2d 465 (Tex.Cr.App.1977), just as any other case may be “distinguished” in some fashion or other; but merely to distinguish another decision on its facts will not necessarily resolve correctly the evidentiary problem at hand.
¶16In sum, giving deference to findings and reasons of the Dallas Court of Appeals, I am not satisfied the opinion of this Court demonstrates they are wrong and its decision is incorrect.
¶17Accordingly, I respectfully dissent.
¶18. All emphasis is mine throughout unless otherwise noted.
¶19. Positing that the jury rejected the alibi defense, the majority says, “Simply because the jury may have found the evidence [offered by accused] unconvincing is not grounds for finding insufficient evidence to support the verdict. Anderson v. State, 701 S.W.2d 868 [at 873] (Tex.Cr.App.1985)." That inscrutable observation cries out for some explanation.