Sizemore v. State

496 S.W.2d 80, 1973 Tex. Crim. App. LEXIS 2638

• Court: Court of Criminal Appeals of Texas
• Decided: June 13, 1973
• Docket: 46902
• Status: Published

Opinions

OPINION

MORRISON, Judge.

This is an appeal from an order revoking probation.

On December 27, 1971, appellant entered a plea of guilty before the court to the offense of burglary and his punishment was assessed at six (6) years, probated. Among other conditions of probation was that he “commit no offense against the laws of this State or any other State or the United States”.

On March 13, 1972, a motion to revoke probation was filed alleging, in part, that he “violated [the terms of his probation] by committing the offense of Attempted Burglary . . . with the intent to fraudulently take corporeal personal property . . . belonging to ... Cecil Renshaw . without [his] consent.”

On August 4, 1972, the court conducted a hearing on the motion to revoke and at the conclusion thereof revoked probation.

Briefly, the evidence shows that Officer Mike Adams of the Port Arthur Police Department observed two men at the side of the Baskin-Robbins Store owned by Cecil Renshaw on Gulfway Drive in Port Arthur about 4:00 a. m. on January 26, 1971. Both men had hold of a crowbar which was apparently inserted in the door of the building. Both men walked away when the police vehicle approached and ran when the officer hollered at them. Appellant was arrested two or three minutes later by Officers Davis and Hawkins after they had received a police radio call and after they saw him enter a pickup truck about a block from the Baskin-Robbins Store. The other man named Parello was also apprehended. Prymarks were found on the aluminum door frame of the building and Officer Adams identified appellant as the shorter of the two men he had observed.

Testifying in his own behalf, appellant related he was seeking a ride to his home in Sour Lake and that Parello offered him a ride home if he would first ride into Port Arthur with him, which appellant did. He testified that Parello left him sitting in the pickup and that when he got tired of waiting he walked around the block looking for Parello and came abreast of the building in question just as the police drove up, and that he ran because he was on probation.

Appellant contends the court abused its discretion in revoking probation. He claims “[t]he state failed to prove that there was no permission to enter the building at the time.”

Cecil Renshaw was not called as a witness.

It is a correct statement of the law in this state that where the owner testifies in a theft case, and fails to state that the property was taken without his consent, that want of consent may not be inferred from the other evidence. Mitchell v. State, 166 Tex.Cr.R. 291, 313 S.W.2d 286. Circumstantial evidence cannot be used to show want of consent unless direct evidence is shown to be unavailable. Casarez v. State, Tex.Cr.App., 468 S.W.2d 412; Dorsey v. State, 172 Tex.Cr.R. 311, 356 S.W.2d 943. On the other hand, in revocation of probation cases, where the owner does not testify, want of consent may be proven by circumstantial evidence. Barnes v. State, Tex.Cr.App., 467 S.W.2d 437; Casarez v. State, supra.

The facts of this case are sufficient for the court to conclude appellant violated the alleged condition of probation and are further sufficient to authorize this Court to conclude that the want of consent of the owner was adequately established by circumstantial evidence.

Finding no abuse of discretion, the judgment is affirmed.