Coleman v. State

530 S.W.2d 823, 1975 Tex. Crim. App. LEXIS 1178

• Court: Court of Criminal Appeals of Texas
• Decided: December 3, 1975
• Docket: 49790
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

Appellant was convicted for the offense of burglary with intent to commit theft under the former Code. His punishment was assessed at five years.

The brief in the present case was filed late and will not be considered under Article 40.09, V.A.C.C.P. See Vale v. State, 491 S.W.2d 671 (Tex.Cr.App.1973), and Stembridge v. State, 477 S.W.2d 615 (Tex.Cr.App.1972). In view of the dissenting opinion, his complaint will be discussed to show that error, if any, was harmless.

The record in this case reflects that at about one o’clock in the morning an officer who was some seventy-five yards from the burglarized building saw the appellant in front of the door with clothing over his shoulder and under his arm. When appellant saw the officer, he ran, hit a trash can, dropped the clothing and continued to run. An officer found him hiding under a car. He had some Hershey bars in his pockets. He also had hacksaw blades, one of which was taken from inside a sock that he was wearing. Hershey bars and hacksaw blades were stolen from the building.

To see if there is reversible error, let us look to other testimony in the case. The appellant testified that he was in front of the burglarized building at the time in question. When he saw the officer and noticed that the building had been broken into, he ran because he was out of the penitentiary on parole and did not want it revoked. He testified that he had been convicted for burglary in 1971 and was assessed punishment at three years, probated, and that the probation was revoked after he had been convicted for the possession of dangerous drugs. He was released on parole in October of 1973. The offense in the present case was committed December 10, 1973.

He related that he had Hershey bars and a hacksaw blade in his pockets when he was apprehended. He testified that he had been working for a construction company and he carried hacksaw blades with him. He testified that he saw someone else in the burglarized building. The officer who saw appellant run testified that no one else was at the building.

In Riggins v. State, 468 S.W.2d 841 (Tex.Cr.App.1971), the accused was found asleep in his car parked by the curb in front of a jewelry store with stolen jewelry. No one saw him enter the store. Someone had vomited in the broken glass on the sidewalk and there was vomit in the car. Vomit also led to the car. The Court held that the facts proved were in “such close juxtaposition, or in such close relation, to the breaking and entry as to be equivalent to direct evidence and a charge on circumstantial evidence was not required.”

In the present case appellant admitted that he was in front of the building with a broken glass and that he fled when he saw the officer. Flight is further evidence of guilt. It appears that the evidence in the present case is just as strong, if not stronger, than in the Riggins case. See that case for additional authorities.

All that a charge on circumstantial evidence does in effect is to inform the jury that the evidence must exclude every other reasonable hypothesis except the defendant’s guilt.

It was written in Riggins:

“It would be difficult to imagine that a jury would reach a different result under the facts of this case with or without a charge on circumstantial evidence.”

That statement is applicable to this case.

The judgment is affirmed.

ODOM, J., concurs in the result.