OPINION
CLINTON, Judge.
Appeal follows conviction for the offense of attempted burglary of a habitation; the jury assessed appellant’s punishment at seven years confinement.
Appellant’s first ground of error complains of the sufficiency of the evidence to support the jury’s finding of guilt. When viewed in a light most favorable to the verdict, the evidence adduced at trial is as follows:
On the afternoon of July 18, 1976, Tom DeLoach was resting after having finished mowing the lawn at his home, when his son came in and informed him that he had seen two women and a man in the backyard of Bob Johnson, a neighbor.1 DeLoach accompanied the boy to the backyard and climbed up with him into the latter’s play “fort,” where the boy had sighted the intruders.2
DeLoach testified: “I saw the male making a cutting-type motion across the top between the wood and the screen on Bob Johnson’s kitchen window, while the two females were standing about five yards away watching him.” DeLoach did not, however, see any type of tool or other object in the hands of the man he observed. This man was later identified as appellant.
DeLoach descended the stairs of the fort, ran across the street and as he approached the side gate to Johnson’s backyard, confronted two women who had just exited that gate. He talked with the women a few seconds and then observed appellant walking out of a rear gate which opened into an alley. According to DeLoach, he at [909]*909this point exclaimed, “Are you all trying to break into that house?”, or something to that effect. The women “broke and ran” down the sidewalk. Appellant was “walking at a rather rapid pace . .. not really running;” DeLoaeh observed appellant enter a car which was parked less than one half block away. The women then arrived at the car, got in, and appellant sped away. The three were almost immediately apprehended.
The evidence established that there was an almost imperceptible ten to twelve inch cut across the top rim of the window screen to Bob Johnson’s kitchen. DeLoaeh testified that the cut was on the screen of the same window at which he had seen appellant make the motion, and that the “gash” was in the same place it would have been “from the way [appellant’s] actions indicated.”
V.T.C.A.Penal Code, § 15.01, proscribes the offense of attempt:
(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.3
V.T.C.A.Penal Code, § 30.02, provides in relevant part:
(a) A person commits an offense if, without the effective consent of the owner, he:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; . . .
[[Image here]]
(b) for purposes of this section, enter means to intrude:
(1) any part of the body; or
(2) any physical object connected with the body.
It is apparent that a person’s cutting a window screen on a habitation would constitute an “entry” within the meaning of § 30.02(b), and further, that such “act”4 would be one “amounting to more than mere preparation that tend[ed] but fail[ed] to effect commission of the offense [burglary] intended.” Section 15.01(a), supra. Here, however, the “act” on which the State based the allegation of attempt, was that appellant’s hand moved across the top of the screen.
Clearly it is only from evidence of this act, coupled with evidence of a cut in the screen5 near the point at which appellant made the “cutting-type motion,” that the jury might infer that appellant cut the screen with an unknown instrument at the time DeLoaeh observed the motion; thus, the State’s evidence offered to prove that appellant did a forbidden “act” was circumstantial.6 Accordingly, it was incumbent that the State’s evidence exclude every reasonable hypothesis other than that the appellant was guilty of the offense charged, in order to sustain its burden of proving that appellant, himself, committed the criminal act. Sewell v. State, 578 S.W.2d 131 (Tex.Cr.App.1979); Stogsdill v. State, 552 5.W.2d 481 (Tex.Cr.App.1977); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969). This the State has failed to do.
We need only recount the testimony adduced by appellant-none of which contra-[910]*910dieted evidence presented by the State-to illustrate that the proof fell far short of excluding every reasonable hypothesis other than that appellant cut the screen of the Johnson home.
On the day of the offense, appellant had received a telephone call from eighteen year old Hope Madrid and seventeen year old Vivian Valdez, at about 4:00 p. m. The women asked appellant if he would drive them to apply for a housekeeping job they had seen advertised in the newspaper;7 appellant agreed. He drove to the address he had been given and the women went to the door of a house. They returned and told appellant that they had gone to the wrong house; they said they thought the house they wanted was down the block, on the corner, and instructed appellant to wait. The women then walked about half a block and went up to the front door of the Johnson home.
According to Madrid, she and Valdez knocked on the door a few times. When no one answered, they walked around the house, to the back door, where they knocked some more. After satisfying themselves that no one was home, Vivian Valdez pulled out a small knife and cut the screen on a window across the point at which the screen was connected to the top of the window frame. As Valdez completed the cut, appellant appeared, coming through the gate which connected the yard to the back alley. Appellant scolded the teenagers, telling them they had “done wrong” and stepped to the window to examine the damage, running his finger over the cut on the screen. At this point appellant instructed the women that they should leave, that they were going to cause trouble. The teenagers exited the side gate as appellant walked to the far backyard to exit the rear gate, through which he had entered. The women met DeLoach at this point and explained that they were looking for work. When De-Loach saw appellant and called out, Valdez and Madrid became afraid, started to run, and called out to appellant that he too should run.
Taking the stand in his own behalf, appellant testified that after he had waited in the car for ten or fifteen minutes he decided he had best look for the teenagers. He walked to the house on the corner the women had indicated and when he did not see them, he began to walk around the house. He soon heard Valdez and Madrid speaking in Spanish and ascertained that they were in the backyard of the residence. He found a gate to the yard from the alley and entered.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
CLINTON, Judge.
Appeal follows conviction for the offense of attempted burglary of a habitation; the jury assessed appellant’s punishment at seven years confinement.
Appellant’s first ground of error complains of the sufficiency of the evidence to support the jury’s finding of guilt. When viewed in a light most favorable to the verdict, the evidence adduced at trial is as follows:
On the afternoon of July 18, 1976, Tom DeLoach was resting after having finished mowing the lawn at his home, when his son came in and informed him that he had seen two women and a man in the backyard of Bob Johnson, a neighbor.1 DeLoach accompanied the boy to the backyard and climbed up with him into the latter’s play “fort,” where the boy had sighted the intruders.2
DeLoach testified: “I saw the male making a cutting-type motion across the top between the wood and the screen on Bob Johnson’s kitchen window, while the two females were standing about five yards away watching him.” DeLoach did not, however, see any type of tool or other object in the hands of the man he observed. This man was later identified as appellant.
DeLoach descended the stairs of the fort, ran across the street and as he approached the side gate to Johnson’s backyard, confronted two women who had just exited that gate. He talked with the women a few seconds and then observed appellant walking out of a rear gate which opened into an alley. According to DeLoach, he at [909]*909this point exclaimed, “Are you all trying to break into that house?”, or something to that effect. The women “broke and ran” down the sidewalk. Appellant was “walking at a rather rapid pace . .. not really running;” DeLoaeh observed appellant enter a car which was parked less than one half block away. The women then arrived at the car, got in, and appellant sped away. The three were almost immediately apprehended.
The evidence established that there was an almost imperceptible ten to twelve inch cut across the top rim of the window screen to Bob Johnson’s kitchen. DeLoaeh testified that the cut was on the screen of the same window at which he had seen appellant make the motion, and that the “gash” was in the same place it would have been “from the way [appellant’s] actions indicated.”
V.T.C.A.Penal Code, § 15.01, proscribes the offense of attempt:
(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.3
V.T.C.A.Penal Code, § 30.02, provides in relevant part:
(a) A person commits an offense if, without the effective consent of the owner, he:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; . . .
[[Image here]]
(b) for purposes of this section, enter means to intrude:
(1) any part of the body; or
(2) any physical object connected with the body.
It is apparent that a person’s cutting a window screen on a habitation would constitute an “entry” within the meaning of § 30.02(b), and further, that such “act”4 would be one “amounting to more than mere preparation that tend[ed] but fail[ed] to effect commission of the offense [burglary] intended.” Section 15.01(a), supra. Here, however, the “act” on which the State based the allegation of attempt, was that appellant’s hand moved across the top of the screen.
Clearly it is only from evidence of this act, coupled with evidence of a cut in the screen5 near the point at which appellant made the “cutting-type motion,” that the jury might infer that appellant cut the screen with an unknown instrument at the time DeLoaeh observed the motion; thus, the State’s evidence offered to prove that appellant did a forbidden “act” was circumstantial.6 Accordingly, it was incumbent that the State’s evidence exclude every reasonable hypothesis other than that the appellant was guilty of the offense charged, in order to sustain its burden of proving that appellant, himself, committed the criminal act. Sewell v. State, 578 S.W.2d 131 (Tex.Cr.App.1979); Stogsdill v. State, 552 5.W.2d 481 (Tex.Cr.App.1977); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969). This the State has failed to do.
We need only recount the testimony adduced by appellant-none of which contra-[910]*910dieted evidence presented by the State-to illustrate that the proof fell far short of excluding every reasonable hypothesis other than that appellant cut the screen of the Johnson home.
On the day of the offense, appellant had received a telephone call from eighteen year old Hope Madrid and seventeen year old Vivian Valdez, at about 4:00 p. m. The women asked appellant if he would drive them to apply for a housekeeping job they had seen advertised in the newspaper;7 appellant agreed. He drove to the address he had been given and the women went to the door of a house. They returned and told appellant that they had gone to the wrong house; they said they thought the house they wanted was down the block, on the corner, and instructed appellant to wait. The women then walked about half a block and went up to the front door of the Johnson home.
According to Madrid, she and Valdez knocked on the door a few times. When no one answered, they walked around the house, to the back door, where they knocked some more. After satisfying themselves that no one was home, Vivian Valdez pulled out a small knife and cut the screen on a window across the point at which the screen was connected to the top of the window frame. As Valdez completed the cut, appellant appeared, coming through the gate which connected the yard to the back alley. Appellant scolded the teenagers, telling them they had “done wrong” and stepped to the window to examine the damage, running his finger over the cut on the screen. At this point appellant instructed the women that they should leave, that they were going to cause trouble. The teenagers exited the side gate as appellant walked to the far backyard to exit the rear gate, through which he had entered. The women met DeLoach at this point and explained that they were looking for work. When De-Loach saw appellant and called out, Valdez and Madrid became afraid, started to run, and called out to appellant that he too should run.
Taking the stand in his own behalf, appellant testified that after he had waited in the car for ten or fifteen minutes he decided he had best look for the teenagers. He walked to the house on the corner the women had indicated and when he did not see them, he began to walk around the house. He soon heard Valdez and Madrid speaking in Spanish and ascertained that they were in the backyard of the residence. He found a gate to the yard from the alley and entered. Appellant testified that he saw Valdez with a knife and told her “to quit.” He then walked to the window, looked, then felt with his fingers “to see if it was cut, and it was.” He told the teenagers, “Let’s get out of here,” and started toward the gate to the alley.8
The only conflict between appellant’s account and that of DeLoach was that appellant admitted he broke into a run close to his car because Valdez and Madrid were shouting that he should run and he became excited.
We are persuaded that the State’s evidence wholly failed to exclude every reasonable hypothesis other than that the screen was intruded as a result of conduct9 by this appellant, and we so hold. Sewell, supra.
The question remains, however, whether the evidence could reasonably be interpreted by the jury as showing appellant’s participation in the event sufficient to render him guilty as a party. Sewell, supra; Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976). [911]*911If appellant is criminally responsible for the attempted burglary committed by the conduct of Vivian Valdez, it is by virtue of V.T.C.A.Penal Code, § 7.02(a)(2).10
The provisions of V.T.C.A.Penal Code, § 7.01, abolished the distinction formerly made between “principals” and “accomplices” by Articles 65 and 70, Vernon’s Ann. P.C. 1925. Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976).
Under the former penal code,
.. . [t]o be guilty of a felony offense as a principal, a defendant must be actually present at the time of its commission or if not present, ... he must at the time the act is being done, be himself actively engaged in the furtherance of the common purpose and design at some other place.
Robinson v. State, 493 S.W.2d 780, 782 (Tex.Cr.App.1973); see also Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976).
Other than appellant’s testimonial denial that he knew of Valdez’ intent to commit burglary, the only evidence of appellant’s intent, or lack thereof, was testimony by Hope Madrid:
Q: Now, Miss Madrid, did you know what Vivian was doing when you all got in the backyard?
A: Yeah, we knew what we were doing.
******
Q: But you hadn’t discussed it with Mr. Urtado?
A: No .. . [w]e didn’t know him that well, and we weren’t going to discuss it with him.
******
Q: Now . . . [y]ou said you weren’t going to discuss it with him, had you all thought about doing this earlier in the day?
A: No, we just decided to do it when we didn’t hear no answer at the door. ***** *
Q [On cross-examination]: When did you decide to burglarize the house?
A: When we didn’t hear no answer at the door.
******
Q: If someone had answered the door, you would have applied for a job?
A: ... [W]e were going to ask for a job, . . .
Q: Okay. Now, when did you decide to burglarize the house?
A: Well, I just finished telling you that when we didn’t hear no answer at that door.
Q: Okay. And you say you told the Defendant to stay in his car?
A: Yeah.
Here, there is no showing whatever that appellant had any purpose or design in common with Vivian Valdez to make an entry into the Johnson abode with the intent to commit theft.
“As to those situations in which one may be guilty as a principal when actually present, the very least that is required is, in addition to physical presence, encouragement by words, or agreement to the commission of the offense. Such agreement must be prior to or contemporaneous with the criminal event.” Suff, supra, at 817.
It is apparently the State’s position that proof of appellant’s “flight” from the immediate scene and subsequent assistance in [912]*912driving Valdez and Madrid out of the vicinity, indicates at least a contemporaneous agreement to commission of the attempt, and appellant’s culpability has thereby been established.11
1. The former Penal Code’s provision that an “accessory”12 was a party to a crime has been eliminated; the conduct formerly constituting accessory acts is proscribed in the new Penal Code by § 38.05 which defines a separate and distinct crime of “hindering apprehension or prosecution.”13 Wygal v. State, 555 S.W.2d 465 (Tex.Cr.App.1977); Easter, supra.
It clearly follows that a person’s “accessory” conduct is no longer recognized under Texas law as conduct making him a party to the crime with which the accused was here charged. If chargeable at all, appellant’s conduct would be more appropriately alleged pursuant to § 38.05, supra. See Wygal, supra.
For the State’s failure to prove both appellant’s intent to promote or assist the commission of the attempt, as well as his solicitation, encouragement, direction, aid, or attempted aid of Valdez in the commission of the attempt, this cause is reversed and remanded to the trial court for purposes of the entry of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
It is so ordered.