Anders v. State

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation445 S.W.2d 167
Docket NumberNo. 41627,41627
PartiesJoe Pat ANDERS, Appellant, v. The STATE of Texas, Appellee.
Decision Date23 September 1969

Page 167

445 S.W.2d 167
Joe Pat ANDERS, Appellant,
The STATE of Texas, Appellee.
No. 41627.
Court of Criminal Appeals of Texas.
Sept. 23, 1969.

Chappel & McFall, by John R. McFall, Lubbock, for appellant.

Jack Young, Dist. Atty., Muleshoe, and Leon B. Douglas and Jim D. Vollers, State's Atty., Austin, for the State.


MEADE F. GRIFFIN, Special Judge.

The appellant was convicted of the offense of burglary. Also, under proper allegations and proof, the jury found he had theretofore been convicted of the offense of burglary, and his punishment was fixed in this case at 12 years' confinement.

This is a companion case to Arcadio (Harvey) Ysasaga v. State, 444 S.W.2d 305, No. 42,067, decided by this Court May 28, 1969.

That case was a circumstantial evidence case and was reversed by this Court because of the failure of the State to call as a witness 'a Spanish boy' who had received and transmitted the money paid by Buckman and Faulkner for ten cases of Treflan which had been taken from a warehouse at Clay's Corner, in Parmer County, Texas, when it was burglarized on the night of January 11, 1967. There was a total of 49 cases and 11 quarts of Treflan, referred to in the record as 50 cases, taken from this warehouse on the night of the burglary. Each case contained 12 quart cans, and each of the cases

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and the cans had stamped thereon the identifying lot number, L--2113. The ten cases sold on the night of January 12, 1967, to Buckman and Faulkner were delivered in Hockley County, Texas, and were taken from a late model red and white Chevrolet pickup. The license number on this pickup was issued to Ysasaga as owner. In this pickup were two shadowy male forms which are unidentified by this record. These ten cases and cans were marked by the identifying 'Lot No. L--2113.'

There were no witnesses to the burglary and no testimony from anyone to show that appellant, Anders, or the red and white Chevrolet pickup were ever at or in the vicinity of the burglarized warehouse at any time.

Being a circumstantial evidence case, the State must rely upon the rule that unexplained possession of recently stolen property is sufficient to sustain a conviction of the defendant for the burglary of the warehouse from which the stolen property was taken. Ysasaga v. State, No. 42,067, supra, and the authorities therein cited.

The next time we hear of any Treflan allegedly taken in the burglary of the warehouse at Clay's Corner was on the 16th of January, 1967. About 5 or 5:30 that afternoon some man called Ruben Brock, Jr., a farmer living in Lamb County, Texas, and asked him if he wanted to buy some Treflan at $70.00 per case. Brock replied that he would take ten cases at that price. The voice told Brock he would deliver the ten cases to Brock's farm residence the next night and that Brock was to pay the $700.00 consideration in cash. Brock called a Mr. Neil Wood, a farmer of that vicinity, and asked Mr. Wood if he wanted to buy the ten cases at $70.00 per case, all cash, and if he would bring the cash to Brock the next afternoon. Wood agreed. The evidence shows that the well known and generally recognized price of Treflan was $8.50 per quart can, or $102.00 per case of 12 quart cans. Wood brought Brock the $700.00 cash on the 17th and gave it to him. About 8:30 or 9:00 P.M. on the night of January 17, 1967, Anders drove up to Brock's residence in a '55 or '56 blue-black Chevrolet sedan with the ten cases of Treflan. Anders was alone in the car. Brock gave Anders the $700.00 cash, and the two of them unloaded the ten cases from Anders' car into the back of Brock's pickup, and Anders then drove off. Brock immediately called Wood, who came in his pickup, and he and Brock took the ten cases and loaded them in the back of Wood's pickup and Wood drove off.

Treflan is a pre-emergence selective herbicide, which when applied to the land, prior to planting, on which cotton or sugar beets are to be planted, will kill the weeds but neither of the two crops. At this time, Wood was preparing the seed bed for his 1967 cotton crop and he used most of the ten cases before he was contracted by the officers about the Treflan he purchased and told it might have been taken in the burglary at Clay's Corner. At least five of the ten cases he received from Brock, and which Brock testified he purchased from Anders, were fully identified as being marked Lot No. L--2113, and having other distinctive markings on the cases put there by an employee of the owner of the Treflan prior to the time it was taken from the warehouse on the night of January 11, 1967.

The ten cases sold to Buckman and Faulkner by the 'Spanish boy' on the night of January 12, 1967, at $75.00 per case, and the cases used by Mr. Wood were the only cases identified as coming from the warehouse at Clay's Corner.

The record is void of any testimony connecting appellant Anders with the ten cases sold to Buckman and Faulkner. We will not refer further to them.

About ten days after Brock purchased the Wood ten cases, he purchased 40 cases of Treflan from Anders for $35.00 per

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case. A short time later, he purchased 13 more cases of Treflan at a price of $35.00 per case, and then an additional 10 cases from Anders at $35.00 per case. This makes a total of 63 cases of Treflan Brock purchased from Anders. The 40 cases purchased were delivered by Anders, and he was accompanied by a Spanish speaking man, called Harvey. The two of them were in a red and white Chevrolet pickup and it appeared to be the same pickup from which the ten cases of Treflan were delivered to Buckman and Faulkner on January 12, 1967. None of the Treflan in the 40 cases, the 13-case purchase or the 10-case purchase was identified as having been in the warehouse at Clay's Corner the night of the burglary, nor taken therefrom.

It looks suspicious that Anders would have sold these cases of Treflan at much less than the market price, would have demanded cash for them, and would have delivered them during the nighttime. However, the suspicious circumstances do not constitute Direct evidence that Anders burglarized the warehouse at Clay's Corner on the night of January 11, 1967, nor prevent the case from being a circumstantial evidence case.

The State's case does not meet the requirements of sufficient evidence to sustain the conviction. 24 Tex.Jur.2d 422, Sec. 742. The evidence shows that the 'Spanish boy' who negotiated the purchase of the ten cases of Treflan by Buckman and Faulkner could have identified the two 'shadowy forms' in the red and white Chevrolet pickup, registered to Harvey Ysasaga. This 'Spanish boy' evidently was well acquainted with the two men in the pickup and they with him as they allowed him to act as 'contact man' and transmit the cash purchase price for the Treflan. The State did not call him as a witness, neither was his absence explained or accounted for. In such situation, circumstantial evidence that is not strong is held to be insufficient to sustain a conviction. 24 Tex.Jur.2d 427, Sec. 745; Hollingsworth v. State, (1967) Tex.Cr.App., 419 S.W.2d 854; King v. State, Tex.Cr.App., 396 S.W.2d 409; Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251, 261 (1956).

This cause is reversed and remanded to the trial court for retrial.

In view of the necessity of another trial, we will write on two of appellant's other points of error.

Appellant complains that under this record Brock was an accomplice witness as a matter of law, and he requested the trial judge to so charge the jury. This the trial judge refused to do, but submitted a charge to the jury inquiring whether or not Brock was an accomplice witness. The trial judge gave appropriate definitions and instructions in connection with this fact issue, and appellant has no complaint as to these. His sole complaint about this charge is that there is no fact issue to be decided and the court should have charged the jury that, as a matter of law, Brock was an accomplice witness.

In Ysasaga v. State, supra, the Court of Criminal Appeals held that Brock was an accomplice witness as a matter of law. In the case at bar Brock is shown to have purchased from Anders and sold to various farmers an additional 63 cases of Treflan. Five of these cases were identified by the Lot No. L--2113 as having been taken from the warehouse at Clay's Corner when it was burglarized on the night of January 11, 1967, and as a part of the ten cases purchased by Wood from Brock. This additional evidence as to Brock's connection with Anders and with the stolen property is much stronger than in Ysasaga.

We hold Ruben Brock, Jr. was an accomplice witness as a matter of law, and sustain the appellant's point assigning error because the trial court failed to so charge the jury.

Appellant also complains of the admission in evidence, over his objections, of the testimony of one Bogard, a Hockley

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County Deputy Sheriff. Bogard lived at, and worked out of, Anton, Texas. He was one of the officers who arrested Anders when he was first indicted for the burglary, and he and Ranger Renfro delivered Anders to the Sheriff of Parmer County, Texas, to answer that charge.

Bogard testified: 'I asked Joe Pat, I said 'Pat, can they canvict you' (Referring to the burglary of the warehouse at Clay's Corner) and he says 'I don't see how they can there in Parmer County, because they will have to have some farmers there on the jury, and I don't see how them farmers can convict me for taking something from somebody that was actually stealing from them, and selling it to them for what it was worth."

Anders' counsel was not present during any part of the conversation.

Before the trial judge ruled on the admissibility of the above statement, and permitted it to be introduced in evidence to the jury, he excused the jury from the courtroom and had an extensive preliminary hearing at which both Bogard and Anders testified, and were fully examined by their...

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