Castaneda v. State, 45967

• Decision Date: 21 February 1973
• Docket Number: No. 45967,45967
• Citation: 491 S.W.2d 885
• Parties: Cornelio CASTANEDA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 885

491 S.W.2d 885

Cornelio CASTANEDA, Appellant, v. The STATE of Texas, Appellee.

No. 45967.

Court of Criminal Appeals of Texas.

Feb. 21, 1973.

Rehearing Denied April 11, 1973.

James M. Beauchamp, Houston, for appellant.

Carol Vance, Dist. Atty., James C. Brough and Brent Graham, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty. and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal stems from a conviction for burglary of a private residence at nighttime with intent to commit theft where the punishment, enhanced under Article 63, Vernon's Ann.P.C., was assessed at life.

In two grounds of error, the appellant challenges the sufficiency of the evidence.

Raul Mendiola testified that on March 7, 1971, he lived at 1513 Hickory in the City of Houston with his wife and two children. On that date about 9 p.m., he left his work at the Shamrock-Hilton Hotel and returned to his residence as a result of a telephone call from his wife. When he arrived home, he found the appellant in custody of the police there and his radio and television set on the front porch. He observed that a front window of his house had been forced open to gain entry. He testified he did not know the appellant and had not given him permission to break and enter his house or take any items therefrom.

P. G. Eagins, who lived in an attached apartment, apparently a duplex, testified that a man came to his house about 8 p.m. on the night in question and knocked on his door. The man was wearing dirty clothes and needed a shave. He was told to leave to Eagins. Shortly thereafter, Eagins observed the man knocking on the door of the Mendiola house, and then saw him remove the screen from a window of the house and enter. Eagins then crossed the street to a house where Mrs. Mendiola was visiting and told her to call the police. When he returned to the Mendiola house, he saw the man coming out of the window with a radio and television set. He unsuccessfully remonstrated with the man about his actions and when the man would not put the items down Eagins struck the man with a baseball bat. The man dropped the radio and television set and fled.

Shortly thereafter, the police arrived and chased the man and apprehended him and returned him to the Mendiola house. Eagins related that the man so apprehended was the same man he saw break and enter the Mendiola house. He was unable, however, to make an in-court identification of the appellant.

Houston Police Officer Hudson and his partner, Officer Crowson, responded to a call made on the night in question and, upon arriving at 1513 Hickory, found Eagins hollering and pointing to a man who was running. The officers gave chase and never lost sight of him. They apprehended him and found him bleeding on the left side of his head. Hudson identified the appellant as the man he apprehended and returned to the Mendiola house, and as the man in whose left front pocket he found a bottle of red capsule-type pills which Mrs. Mendiola identified as hers.

The appellant strongly relies upon the failure of Eagins to make a positive in-court identification of him. Eagins did, however, testify the man apprehended by the police was the man he observed committing the burglary. The man apprehended was identified as the appellant by both Mendiola and Hudson. Further, it is well settled that where the evidence shows the burglary of a house by someone, the accused's unexplained possession of some or all of the property stolen from such house is sufficient to sustain a conviction. 4 Branch's Ann.P.C., 2d ed., § 2537, p. 866; 10 Tex.Jur.2d Burglary §§ 87--92, pp. 247--258; Beard v. State, 458 S.W.2d 85, 87 (Tex.Cr.App.1970); Calhoun v. State, 466 S.W.2d 304, 306 (Tex.Cr.App.1971), and cases there cited. See also Martinez v. States, ...