Callahan v. State

• Decision Date: 21 November 1973
• Docket Number: No. 46643,46643
• Citation: 502 S.W.2d 3
• Parties: Richard Dennis CALLAHAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 3

502 S.W.2d 3

Richard Dennis CALLAHAN, Appellant, v. The STATE of Texas, Appellee.

No. 46643.

Court of Criminal Appeals of Texas.

Nov. 21, 1973.

Rehearing Denied Dec. 19, 1973.

Mike Thompson, Dick Stengel, El Paso (on appeal only), for appellant.

Steve W. Simmons, Dist. Atty., Myer J. Lipson, Asst. Dist. Atty., El Paso, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for burglary. The punishment was assessed at confinement in the Texas Department of Corrections for two (2) years.

Appellant's first three grounds of error present various challenges to the sufficiency of the evidence. The record reflects that the State's first witness was Officer Alfredo Bonilla, dispatcher for the El Paso Police Department. Officer Bonilla testified that at 1:22 a.m. on August 10, 1971, he received notice that a silent alarm had been activated at Carole's Liquor Store. This information was relayed to Officers Charles John Klimansky and Francisco Loya, whose patrol car was then located several blocks from the store. Arriving at the liquor store within a few minutes of the radio call, Officers Klimansky and Loya found appellant and the co-defendant, John Lester, standing by appellant's car, which was parked behind the liquor store. Investigation by the officers revealed a window at the front of the store had been broken and dust impressions about the size of half-gallon bottles of whiskey on a counter adjacent to the broken window. Shining his flashlight into appellant's car, Officer Loya observed whiskey bottles partially protruding from beneath the rear seat. A tire tool and piston assembly were also found in the car. Appellant and the co-defendant related that they had stopped at the Seven-Eleven Store next to the liquor store when two unidentified men approached them and had given them $5.00 each to hold four half-gallons of whiskey for them until the next night; and that they agreed to do so and shortly thereafter had gone behind the liquor store to urinate.

Appellant's attack on the sufficiency of the evidence is multi-pronged. Initially, he claims that the 'indictment . . . is defective in that there is a fatal variance between the allegations in the indictment and the proof offered by the state.'

First, we observe that the failure of the evidence to sustain the allegations of the indictment does not render an indictment form defective.

It appears to be appellant's actual contention that the allegata does not meet the probata. Appellant advances the claim that the State's theory of the case was that the store's window was broken by a tire tool or piston rod found in appellant's car, when other evidence showed that a rock the size of a softball was found in the store near the ice machine 'sometime after this incident.

The indictment alleges that the appellant '. . . did then and there unlawfully break and enter a house then and there occupied and controlled by Joe Feldberg . . .' but it does not allege the means of such breaking, nor is the allegation of such means essential to the validity of the indictment. The State was only required to prove there was a 'breaking' as defined in Article 1394, Vernon's Ann.P.C.

Although there was testimony that the officers found certain tools in appellant's car, the State made no effort to show that such tools had actually been used in the breaking of the window. Appellant, however, seizes upon such testimony and attributes a theory to the State and then calls attention to testimony he elicited that a rock had been found in the store sometime later and claims a variance between the allegata and probata.

There is clearly no merit to appellant's first contention.

Next, appellant contends the evidence is insufficient to show there was any intent to take corporeal personal property.

To support such contention appellant relies upon the testimony of the complaining witness Feldberg that he did not 'make any determination' of how many bottles were actually missing from his store 'that night.'

His reliance upon such testimony is misplaced. It is well established that the validity of a conviction for burglary With intent to commit theft does not rest upon the actual theft of corporeal personal property following the 'breaking,' but only that it be done with the appropriate intent to commit theft. Therefore, if no property at all was stolen, the conviction for burglary with intent to commit theft may be sustained if all elements of such offense have been proven.

We further note that '. . . the act of breaking and entering a house at nighttime raises the presumption the act was done with intent to steal.' Hutchinson v. State, 481 S.W.2d 881 (Tex.Cr.App.1972). ¹ In the instant case the evidence was sufficient to show that the burglary occurred during the nighttime--around 1:22 a.m. See Article 1396, Vernon's Ann.P.C.; 4 Branch's Ann.P.C., 2d ed., § 2534, p. 862.

Still further, we observe that Feldberg unequivocally identified the half-gallon liquor bottles taken from under the seat of appellant's car as coming from his store. The fact he may not have made 'a determination' of exactly how many bottles were actually missing after the alleged burglary does not show the requisite intent was absent. In addition, Officer Klimansky testified he found dust impressions on the counter near the broken window which were the same size as the bottles discovered in appellant's car.

In Jones v. State, 458 S.W.2d 89, 92 (Tex.Cr.App.1970), this court said: 'Ultimately the question as to whether the property found in the defendant's possession was that taken from the burglarized house is one for the jury's determination.' Further, a jury's finding of intent to steal will not be disturbed on appeal where there is no testimony to indicate that such entry was made with any other intent. See Hutchinson v. State, supra; Hawkins v. State, 467 S.W.2d 465 (Tex.Cr.App.1971).

Appellant further urges that evidence, 'being entirely circumstantial, is insufficient to support the conviction.' We do not understand appellant to contend that a burglary conviction cannot rest upon circumstantial evidence, but only that the circumstantial evidence here offered was insufficient.

We observe that the trial court charged the jury on the law of circumstantial evidence, and a verdict of guilty was returned. When reviewing the sufficiency of the evidence, this court must consider the evidence in the light most favorable to the jury's verdict. Castaneda v. State, 491 S.W.2d 885 (Tex.Cr.App.1973); Roberts v. State, 483 S.W.2d 266 (Tex.Cr.App.1972); Jones v. State, 442 S.W.2d 698 (Tex.Cr.App.1969).

Appellant calls attention to the fact that there were no fingerprints discovered and that he was not found inside the store. Perhaps these facts could have persuaded the jury to acquit, but on appeal these facts are not enough for this court to overturn the jury's verdict.

Appellant also urges that the evidence is insufficient because his explanation made at the time of arrest for being behind the store with the bottles of whiskey under his car seat was never refuted by the State.

The testimony reflects that appellant and the co-defendant told the officers that shortly before their arrest and while they were at the Seven-Eleven Store next to the liquor store in question two men approached them and asked them to hold the four half-gallon bottles of whiskey and bring the whiskey back for them the next night. The appellant and his co-defendant were given $5.00 each for agreeing to the requested task. Several minutes later they went behind the liquor store to relieve themselves. On cross-examination of the appellant and his co-defendant, it was established that the young men who approached them were complete strangers to them, that they remained unidentified, that they gave no address, that no effort was made to get their license plate number, nor did the strangers 'take down' the names and addresses of the appellant and co-defendant, and no reason was given as to why the request was made. The agreement was that they would meet again at the same store the next night about 8 p.m.

It should be remembered that a jury is not bound to accept an appellant's explanation of his possession of recently stolen property. Franklin v. State, 457 S.W.2d 53,...