I've got a brief due soon with a sufficiency issue that's got me buffaloed.

The facts:

(1) victim sells SUV to defendant for $10,000,

(2) oral contract calls for $6,000 down, and $4,000 in 60 days,

(3) defendant pays $6,000,

(4) victim retains title;

(5) defendant doesn't come through with the $4,000 in 60 days,

(6) victim repossesses after 90 days;

(7) defendant goes to car lot and sticks up victim.

My defendant is claiming on appeal that he can't be guilty of stealing the SUV because he owned more of the SUV than the victim. This doesn't seem like a good argument but TPC sec. 31.10 appears to require that I show that the victim had the right to *exclusive* possession of the SUV. I don't think Texas implies any security interest lien in an oral contract.

I'm going to argue that the oral contract was executory (i.e., each party has unfinished obligations -- in this case, the defendant had to pay the $4,000 in 60 days, and the victim had to turn over the title) and that the seller/ victim could therefore rescind it following the defendant/ buyer's breach. I'm citing cases from 1910 to 1938. Yuck. Any thoughts? Am I making this too hard?

Its never a very good idea to start importing UCC or other civil law concepts into the Penal Code definition of "owner". Cox, 2002 WL 1663718 *2. Why not focus on who was in possession of the SUV as in Brown, 56 S.W.3d at 919? The robbery statute is surely not to be interpreted to permit use of force to resolve possession questions just because there are issues about title or ownership. Effectively, for the purposes of the robbery statute the repossessor was the only "owner" even if the purchaser had some right to possession because ownership under 1.07(35) doesn't necessarily depend on any right to possession. Nor does it recognize rights that are unrealized at the time of the offense. Robertson, 21 S.W.3d at 558. In Freeman, 707 S.W.2d 597, the defendant was found guilty of theft although she established a greater right to possession than the person alleged as the owner by the State. The court said: "Implicit in the meaning of the word 'appropriation', when it comes to competing and equal possessory interests in property, is that the accused person must have exercised 'unauthorized' control over the property." Martinez, 753 S.W.2d at 167 says "theft by one co-owner of property is prohibited even though the non-actor also holds title to the allegedly stolen property and may not have an exclusive right to possession."
Did your appellant raise a mistake of fact defense?

[This message was edited by Martin Peterson on 11-01-02 at .]

Researching something else, I ran across Govan, 20 S.W.2d 1049, which says that if property is fraudulently taken from you, in endeavoring to retake possession you would not be guilty of robbery though you could be guilty of assault. That may still make sense.