Bowers v. State
| Citation | 414 S.W.2d 929 |
| Decision Date | 12 April 1967 |
| Docket Number | No. 40282,40282 |
| Parties | Erskine Elwood BOWERS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Legg, Saxe & Baskin by Pat M. Baskin, Midland, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
This is an appeal from an order revoking probation.
On December 13, 1965, appellant plead guilty to the offense of Robbery By Assault and was assessed a punishment of five (5) years in the penitentiary. Sentence was pronounced on the same date, but the execution thereof was suspended and appellant was granted probation.
Among the conditions of probation was that he 'commit no offense against the laws of this State or of any state or of the United States.'
On the 9th day of July, 1966, the State filed a motion to revoke appellant's probation, alleging the terms and conditions were violated in that he, on or about June 7, 1966 committed the offense of theft of a lawn edger, and that on or about June 8, 1966, he committed the offense of theft of a tire and wheel.
On July 22, 1966, a hearing was had upon the State's motion to revoke probation. The Court's order, finding that appellant had violated his conditions of probation and revoking probation, indicates that the only basis for the revocation is the theft of the tire and wheel on June 8, 1966.
The only question involved in an appeal from an order revoking probation is whether the trial court abused its discretion.
The State's evidence reveals that Houston Caruthers of Midland, who had the lawn edger stolen from him on June 7, 1966, testified that a new tire and wheel which had been mounted under his truck and which had never been on the ground was stolen from him on June 8, 1966. He had known the appellant for ten (10) or twelve (12) years and had seen him frequently when the appellant visited the house next door to the Caruthers home.
Ralph Holder, owner of the Economy Welding Service of Midland, testified that he had purchased from the appellant for the one taken from Caruthers. He testified the one taken from Caruthers. He testified as that he did not believe the value of the tire was in excess of $50.00; that appellant told him that the tire had come 'from under a truck they had wrecked out'; that he had known appellant for two (2) years, had purchased items from him before, and knew his father had a junk yard. Holder related that since the tire was new he had questioned in his own mind that the tire and wheel belonged to the appellant.
Wayne Gideon, Detective Captain of the Midland Police Department, testified he had recovered the Caruthers tire and wheel from the Economy Welding Company on June 9, 1966.
Appellant called his nephew, Curtis Ray Carter, as a witness. Carter testified that he alone had stolen the tire and wheel on June 8, 1966; that without telling the appellant that the items were stolen requested appellant to sell them for him; that he remained in the car while appellant sold the items.
Testifying in his own behalf, appellant denied stealing the tire and wheel or knowing at the time he sold the items that they were stolen. He admitted telling Ralph Holder that the tire and wheel had come from a 'wrecked out' truck, but only because he assumed Carter had gotten them from appellant' father's junk yard, to which he had access. He related that Carter had tole him it was an old tire, but that before selling the items for $6.00, he observed that it was a new tire and wheel which in his opinion was worth $30.00.
The rule is well established that when evidence of theft is circumstantial and based on possession, and the person in whose exclusive possession the recently stolen property is found fails to give an explanation or gives a false explanation when called upon to explain or when the facts are such as to require an explanation from him, such will warrant a conviction without further proof. 55 Tex.Jur.2d, Sec. 214, pp. 480--481.
The question for our determination is whether the appellant's explanation made to Ralph Holder was a reasonable and satisfactory account of his...
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