Markham v. State

714 S.W.2d 93, 1986 Tex. App. LEXIS 8207
CourtCourt of Appeals of Texas
DecidedJuly 9, 1986
Docket04-85-00434-CR
StatusPublished
Cited by6 cases

This text of 714 S.W.2d 93 (Markham v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Markham v. State, 714 S.W.2d 93, 1986 Tex. App. LEXIS 8207 (Tex. Ct. App. 1986).

Opinions

OPINION

CANTU, Justice.

This is an appeal from a conviction of burglary of a vehicle. TEX. PENAL CODE ANN. § 30.04 (Vernon 1974). After determining the appellant’s guilt, the jury found an enhancement paragraph in the indictment to be true and assessed punishment at 15 years’ confinement and a $10,-000.00 fine. TEX. PENAL CODE ANN. § 12.42(a) (Vernon 1974).

Appellant’s sole ground of error challenges the sufficiency of the evidence to support his conviction. A recitation of the evidence is, therefore, required.

The State presented three witnesses at the trial. The complaining witness testified that on May 21, 1985, she stopped at a San Antonio Shamrock service station to purchase gas for her automobile. According to the complainant, she was inside the station for approximately three minutes. When she returned to her automobile, a pink leather purse she had left on the seat of the car was gone. The complainant called the police, who arrived within ten minutes. The police notified other officers via the police radio that the burglary had just occurred and that a pink purse had been taken. The complainant did not see the appellant or any other person enter her car.

The State also called two San Antonio Police officers who were working undercover on the day in question to testify. One of the officers, Joe Morris, related that he observed a 1977 red and white Buick, that was under surveillance for suspected involvement in several recent thefts, parked at the Shamrock service station. Morris had been following the Buick, but had lost sight of it for approximately ten minutes.1 When he relocated the vehicle it was at the Shamrock station. Three men had been in the vehicle while Morris was following it, however, only two men were in the car at the station. Morris parked approximately 100 feet from the Buick and observed a man wearing a green shirt get into the right front passenger side of the car. The man in the green shirt did not have anything in his hands when he got into the car.

The Buick left the Shamrock station followed by Morris. While keeping the Buick under surveillance, Morris heard the broadcast on his police radio concerning the car that had been burglarized at the Shamrock station, and the pink purse that had been taken.

George Lockamy, the other undercover officer involved in surveillance of the Buick, testified that he had taken over following the Buick when he too heard the broadcast concerning the stolen pink purse from the automobile at the Shamrock station.

Lockamy followed the Buick to a parking lot. The Buick made a u-turn and parked next to Lockamy’s car. According to Lock-amy’s testimony, he determined that the occupants of the Buick recognized that Lockamy was following them, and wanted to find out who he was. Lockamy got out of his car and approached the Buick. Inside, on the back seat, was a pink purse with its contents scattered about. Identification and credit cards near the purse bore the complainant’s name. The appellant was sitting in the front passenger seat and was wearing a green shirt. Neither of the other occupants was wearing a green shirt.

[95]*95Lockamy testified that the right front seat passenger was talking with his arm over the front seat of the Buick to the occupant in the back seat while he was following the Buick. However, at no time did any of the witnesses see appellant with the purse or its contents.

The State contends that appellant’s unexplained possession of recently stolen property is alone sufficient to support a conviction for the burglary in which the property was stolen. Since appellant was in the car with the pink purse, and was observed outside the Buick at the location of the burglary, the State maintains that the evidence is sufficient to support appellant’s conviction.

Appellant, however, argues that the circumstantial evidence is insufficient. Appellant points out that there were two other men in the vehicle and that appellant himself was not seen in possession of the purse or its contents. Further, appellant argues that the purse was in the back seat of the Buick while he was in the front seat, and that he did not own the vehicle. Thus, appellant maintains that every reasonable hypothesis other than that of guilt has not been excluded. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983) (en banc).

Where there is independent evidence of a burglary, an unexplained, personal or exclusive possession of recently stolen property is alone sufficient to support a conviction for the burglary from which the property is taken. Jackson v. State, 645 S.W.2d 303 (Tex.Crim.App.1983); Williams v. State, 621 S.W.2d 613 (Tex.Crim.App.1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1755, 72 L.Ed.2d 165 (1982). Appellant did not personally possess the pink purse, rather it was in the car with appellant and two other persons. However, it is not necessary that the appellant be found in the immediate possession of stolen goods if it appears that the accused is exercising control over the goods, and is found in close relation to the goods. Beard v. State, 458 S.W.2d 85 (Tex.Crim.App.1970). The question before us then is whether the close juxtaposition of the facts in this case permit an inference of possession by appellant of the pink purse. Generally, the close juxtaposition doctrine applies where a defendant is found near or with recently stolen property or other contraband and additional facts indicate that the defendant is guilty; rendering the close relationship of the facts the equivalent of direct evidence of the element to be proven. Riggins v. State, 468 S.W.2d 841 (Tex.Crim.App.1971). Thus an inference of guilt may arise from the defendant’s possession of stolen property. However, to warrant such an inference from possession alone, such possession must be personal, recent, unexplained and must involve a distinct and conscious assertion of a right to the property by the accused. Carter v. State, 668 S.W.2d 851, 852 (Tex.App.-San Antonio 1984, pet. ref’d).

For example, in Hunt v. State, 625 S.W.2d 405 (Tex.App.-San Antonio 1981, pet. ref’d) police officers observed the defendant near a truck. They heard the truck door open and saw the defendant carrying a box. The box contained chickens that later were determined to have been stolen from the truck. Although the defendant had not been seen actually stealing the chickens, the fact that he had been near the truck and was found with the chickens stolen from the truck permitted an inference that the defendant had stolen the chickens.

Similarly in Grinage v. State, 634 S.W.2d 863 (Tex.App. -San Antonio 1982, pet. ref’d) the defendant was found hiding in a business building when it was closed. A desk and door had been broken into and items were missing.

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Related

Markham v. State
761 S.W.2d 553 (Court of Appeals of Texas, 1988)
Markham v. State
751 S.W.2d 190 (Court of Criminal Appeals of Texas, 1988)
Phelps v. State
730 S.W.2d 198 (Court of Appeals of Texas, 1987)

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Bluebook (online)
714 S.W.2d 93, 1986 Tex. App. LEXIS 8207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markham-v-state-texapp-1986.