Riggins v. State

468 S.W.2d 841, 1971 Tex. Crim. App. LEXIS 1829

• Court: Court of Criminal Appeals of Texas
• Decided: June 2, 1971
• Docket: 43684
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

The appeal is from a conviction for burglary with intent to commit theft, enhanced by a prior conviction under Article 62, Vernon’s Ann.P.C. The punishment was assessed at twelve years.

This out-of-time appeal was granted by the trial court for good cause after it was shown that the appellant was transferred to the Texas Department of Corrections prematurely without the opportunity of giving notice of appeal.

The sole ground of error is that the trial court erred in refusing to submit his requested charge on circumstantial evidence.

The record reflects that at approximately 7 o’clock in the morning of January 9, 1967, A. C. Tribble received a telephone call and went to his jewelry store in Fort Worth. When he arrived, he found that the plate glass of a front window had been broken and some watches and other items were missing. Tribble then looked into a white Chevrolet automobile parked in front of the store and saw his missing merchandise and the appellant asleep in the car. Tribble noticed that someone had vomited in the broken glass on the sidewalk and there was vomit inside the car.

Officer Nelson of the Fort Worth Police Department testified that he talked to A. C. Tribble at the scene of the burglary. He then saw the appellant apparently asleep sitting under the wheel of the parked car. He saw rings, watches, other jewelry, a crowbar, hammer, flashlight and a half bottle of whiskey inside the car. A punch and a screwdriver were found in appellant’s pocket. A photograph introduced into evidence reflects that the left side of the parked white Chevrolet was next to the curb in front of the burglarized building. He also testified that there was vomit in the broken glass on the sidewalk, and that “the vomit led to the car and was on the driver’s door.”

Officer Johnson testified that the appellant appeared to be drunk and passed out in the car. He also testified that the crowbar found in the car with paint on it matched the pry marks and the paint on the door of the building.

The appellant testified that he was drunk in the car and had been there since 5:30 that morning but that he did not break into the building. He admitted having some of the tools in his possession. On direct and cross-examination it was shown that he had been convicted for burglary and for the federal offense of possessing a sawed-off shotgun.

The proof shows that the building was entered by someone who had the intent to commit theft. Were the facts in such a close juxtaposition to be equivalent to direct testimony? If so, no charge on circumstantial evidence was required. De La O v. State, Tex.Cr.App., 373 S.W.2d 501. See 31 Tex.Jur.2d, Instructions, Section 123, page 682; 4 Branch’s Ann.P.C., Section 2554, page 888.

The evidence shows there was broken glass from the window and vomit on the sidewalk which led to the parked car which had vomit on the door by the driver where the appellant was seated and vomit inside the car. The merchandise from the.store was on the front seat and floor and in the back of the vehicle.

In Hall v. State, 161 Tex.Cr.R. 460, 278 S.W.2d 297, the prosecution was for burglary. This Court noted that where the evidence showed that the accused was leaving from a building after the place had been closed a charge on circumstantial evidence was not required.

In Smith v. State, 161 Tex.Cr.R. 620, 273 S.W.2d 623, the prosecution was for murder without malice for driving a motor vehicle while intoxicated. There was no eyewitness to the collision. The accused was seen leaving a service station in his automobile and ten or fifteen minutes later the witness at the service station heard sirens and ambulances and went to the scene of the collision and saw the same automobile that the accused drove from the station. The first people at the scene of the wreck found the accused lying on his back on the ground with his feet up in the Chevrolet automobile. They did not see any other people in or near the automobile. Even though no one saw the accused driving at the time of the collision, this Court held that the evidence was direct that he was driving the automobile at the time, and place in question and that a submission or charge of circumstantial evidence was not required.

In Reneau v. State, 167 Tex.Cr.R. 531, 321 S.W.2d 886, the conviction was for driving while intoxicated. No one saw the accused driving. The witness was awakened from his sleep by the screaming of tires and heard a “thudding” sound at 3 a. m., got up and went to the bedroom window and saw a Cadillac across the street, nose down, against an embankment seven or eight feet high with the motor accelerated. He went to the car and found the accused there with his foot on the accelerator and saw no one leave the car. The accused’s face was cut and bleeding. Even though no one saw him driving the automobile, this Court held the failure to charge on circumstantial evidence was not error. The opinion cited Pope v. State, 156 Tex.Cr.R. 597, 245 S.W.2d 245; Cave v. State, 161 Tex.Cr.R. 107, 274 S.W.2d 839, and Hayes v. State, 162 Tex.Cr.R. 660, 288 S.W.2d 771.

In Ewing v. State, Tex.Cr.App., 400 S.W.2d 911, the prosecution was for burglary of an automobile. The evidence showed that a detective saw the accused leaning inside a parked automobile holding a portable radio. The owner of the vehicle testified that the right front window had been broken after he had locked the automobile and that the radio that the accused was holding was his. Even though no one saw Ewing break in the motor vehicle, this Court held that a charge on circumstantial evidence was not required.

We hold that in this case the facts proved are in such close juxtaposition, or in such a close relation, to the breaking and entry as to be equivalent to direct evidence and a charge on circumstantial evidence was not required.

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.

No reversible error appears in the record.

The judgment is affirmed.