Hanes v. State

341 S.W.2d 428, 170 Tex. Crim. 394, 1960 Tex. Crim. App. LEXIS 2232

• Court: Court of Criminal Appeals of Texas
• Decided: October 5, 1960
• Docket: 32109
• Status: Published

Opinions

WOODLEY, Judge.

The offense is attempt to commit burglary; the punishment, two years.

About 1:45 A.M., R.D. Arthur, of the Denison Police Department, was making a patrol check of business places. He saw two men at the rear door of Clay’s Drive-In Grocery “up against the door.” The men “ducked down” behind a compressor and some pop bottle cases.

The patrolman left his car and went behind the store trying to locate the men he had seen. He went on to the railroad track behind the store and stopped, looking both ways. He heard a noise in the grass and weeds on the side of the track, and saw someone move around a large concrete pillar. He then found appellant and one Anderson lying face down in the grass at the bottom of the concrete pillar, some 125 feet from the grocery store door.

Appellant had a pair of tin snips in his hand. As he got up, at the officer’s command, he pitched them into the grass. A flashlight, a large punch, a small punch and a chisel were found in his pockets.

Anderson had a 12 pound sledge hammer in his hand and at the place where they were found lying in the grass a pair of tin snips, two pairs of gloves and a pair of pliers were found.

The door at which the men were seen was aluminum sheeting over two by four framing. A wooden bar across the inside was used to secure it in place of a lock.

On the door two horizontal cuts were found which Mr. Clay, the store owner, testified were not there the day before. The cuts were through the aluminum sheeting and were described as “smooth cuts * * * .” “I put the snips up there and they were the same width and everything.” “There were one large cut and then two small cuts.” “I put the tin snips up to the door at the mark and checked them with it.”

Mr. Clay, the owner of the grocery store, testified that he was acquainted with appellant and had not given appellant or anyone else permission to enter the store after it closed about midnight. Appellant did not testify.

Viewing the evidence in the light most favorable to the jury’s finding, it is deemed sufficient to sustain the verdict.

Appellant’s brief presents a number of complaints regarding the court’s charge, none of which may be considered because of the absence of any exception to the court’s ruling in regard thereto.

The record contains motions addressed to the court concerning the production of evidence by the state in advance of the trial. In the absence of any showing that such motions were presented to the court, a ruling secured and an exception reserved, these motions present nothing for review.

The remaining ground for reversal is based upon the overruling of appellant’s motion for new trial because of jury misconduct.

If the testimony heard by the trial judge showed any reference to appellant’s failure to testify, as alleged, there was evidence to the contrary. At most the record shows a mere mention of the defendant’s failure to testify, immediately rebuked, and the juror was reminded that such was not to be considered. This is not ground for reversal. See Calloway v .State, 137 Tex. Cr. R. 405, 129 S.W. 2d 646; Vaughn v. State, 134 Tex. Cr. R. 97,113 S. W. 2d 895; Jenkins v. State, 49 Tex. Cr. R. 457, 93 S.W. 726; Branch’s Ann. P.C. 2d Ed., Vol 1, p. 564, Sec. 589; De La Rosa v. State, 167 Tex. Cr. Rep. 28, 317 S.W. 2d 544.

The judgment is affirmed.