Hines v. State

458 S.W.2d 666

Opinions

OPINION

MORRISON, Judge.

The offense is attempted burglary with two prior non capital convictions alleged for enhancement; the punishment, life.

The sufficiency of the evidence is challenged. The allegedly injured party testified that after midnight on Halloween night he was in his garage and observed a man, whom he later identified as appellant, at a door of his house with a hand on the door. At this time, he turned on the light, and the appellant fled. We need not pass upon the one man lineup identification of appellant, because we find the evidence insufficient to support the jury finding that appellant attempted to break and enter the injured party’s house.

The writer has examined all previous holdings of this Court and finds that the facts in Jackson v. State, 145 Tex.Cr.R. 46, 165 S.W.2d 740, more nearly correspond to those before us here. In that case, the accused was seen on a “ledge of a window in the Stevenson’s house.” Judge Hawkins, with his usual dry wit, observed that “appellant was certainly apprehended in a most embarrassing and suspicious position. He may have intended to enter the house for the purpose of stealing * * *. It may be fortunate for appellant that the vigilance of the officers brought them to the scene in time to save him from effecting his designs.”

This case, as well as Jackson, supra, is to be distinguished from all other cases brought under this article in that no physical injury to the building was shown which would evidence an actual intent to break and enter. Appellant was not shown to have any tools or equipment as commonly appears in cases of this nature. For all this record shows, he might have been a window peeper. See the cases annotated in 12 C.J.S. Burglary § 63.

Because the evidence is insufficient to support the conviction, the judgment is reversed and the cause remanded.