CCP Article 38.04 allows photos of stolen property in theft cases relating to retail store thefts, shoplifting and the like.
Do the Texas rules of evidence permit the same "photographic evidence" alternative in cases where stolen property is recovered from John Q. Suspect who stole the property from neighbor Mary Doe Public?
Here is the scenario: Air conditioner was stolen from John. John wants to press charges. Bill stole the air conditioner and sold it to Nancy. Nancy admitted to buying it from Bill knowing it was stolen from John. The air conditioner was recovered from Nancy's house. Serial numbers were matched in support of the case and numerous PHOTOGRAPHS were recorded showing the a/c unit before it was stolen and after it was recovered. Upon recovery of the a/c unit it was returned to John. After a year of using it, it crapped out and John threw it away. The case is still pending and the tangible a/c unit is not available since it was trashed. Are the pictures now the BEST evidence or is the case go in the trash since the a/c unit is not available?
Thanks for any feedback.
38.34 is not limited to retail thefts. As long as a witness can testify that your photo accurately depicts what it purports to show, that's all you need. Remember, the state's only burden is to prove the defendant stole an item. That can be done in any manner that satisfies the jury, even if it's done by testimony alone, i.e. he stole my ipod and threw it in the river. Photos are used mainly because they usually help eliminate doubt, but there's no rule I know of that says you have to produce either the item or a photo.
JohnW--thanks for the reply.
I think that 38.34 IS specifically limited to retail thefts because it defines "property" as tangible personal property offered for sale or lease by a person engaged in the business of selling goods or services to buyers. (see 38.34(a).
However, I don't think your case is completely gone. Chapter 47 dealing with the disposition of stolen property clearly allows the return of stolen property to a true owner or person with a superior right of possession before a trial.
There is nothing that I am aware of that requires any actual stolen property to be introduced into evidence. This is no different that a photograph of a stolen truck which would be sufficient in an auto theft case. There just isn't a specific statute like there is for retail items.
I just hate it when somebody reads those silly statutory definitions. I stand corrected.
Local agency has asked if they can preserve photos of evidence (alcohol,etc.) in lieu of the ACTUAL evidence......Mainly, they don't want to keep dozens of open bottles, beer cans, etc. in the evidence room on stuff that is generally class C....
I assume the inability to produce the actual alcohol/container goes to the weight of the evidence, but the photographs would still be admissible and are not insufficient as a matter of law...Heck, the cop's word that it was alcohol SHOULD be sufficient...
Problem is they complain a judge is balking on them and I can't find any authority to back them up....Anybody got any law on it?
John W, you are no longer incorrect. The past legislature broadened 38.34 to include all stolen property, not that just stolen from stores. Effective September 1, 2009. I testified for the author at a hearing and one of the legislators actually said, "I'm surprised the law isn't already like this".
As for photographing other types of evidence for class C cases, a picture says a thousand words! And ...it's a Class C.
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