Clark v. State

• Decision Date: 10 November 1976
• Docket Number: Nos. 52007,s. 52007
• Parties: Bennie Edward CLARK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 125

543 S.W.2d 125

Bennie Edward CLARK, Appellant, v. The STATE of Texas, Appellee.

Nos. 52007.

Court of Criminal Appeals of Texas.

Nov. 10, 1976.

Richard M. Price, Abilene, for appellant.

Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for burglary of a building in which punishment was assessed at confinement in the Texas Department of Corrections for four (4) years.

In two grounds of error appellant attacks the sufficiency of the evidence to show an entry into a building and to show an intent to commit theft.

The record reflects that on December 7, 1974, at 4:45 a.m., a silent alarm signal was received at the home of Mrs. Hudgens of the Abilene Burglar Alarm Company from the premises of the Corley-Wetsel Truck Company. After waiting thirty seconds to see if a report of an accidental set-off would be called in, Mrs. Hudgens called the police dispatcher and reported the alarm. Officer Garland Wade of the Abilene Police Department was refueling his patrol unit at the city barn located within 700--1,000 feet of the Corley-Wetsel Truck Company when he received the dispatch. The time was approximately 4:45 a.m. It took one minute to arrive at the premises of the truck company following the 30 second dispatch. Arriving from the west on East Highway 80, he drove his unit to the front of the leasing office and main building, looking for broken windows or open doors. While driving along the side of the building on his first circle he heard a whistle, though he could not tell where it came from. After getting out of his car to check a door, he returned to his patrol unit and continued circling the building. On arriving again at the east side of the building, the officer saw another patrol car which had stopped a 'chevy' pickup on the premises. This pickup had no lights on and was carrying the appellant in the passenger side. Officer Wade testified that on his first time around the north side of the building this pickup was not in view. He also added: 'There's no way that any vehicle could have come in here because I was at this location twice, and with it headed back this way. All of this took place in a matter of a minute and a half, or maybe two minutes.'

The second patrol unit which stopped the pickup was carrying Officers Jimmy Seals and Eldred Carter of the Abilene Police Department. They also had responded to the dispatch announcement of the burglar alarm at the Corley- Wetsel Truck Company. Officer Seals testified that it took about three minutes to reach the Corley-Wetsel Truck Company lot, traveling south on Judge Ely Boulevard. On turning into the back of the lot, the officers saw a white over brown pickup at the rear of the building traveling on the lot in an easterly direction at approximately five miles per hour with its headlights off. The truck did not have license plates or an inspection sticker on it. The officers pulled in front of this truck, blocking its exit and stopping it. Officer Carter noted that the two men in the pickup seemed nervous. The officers found in the back of the pickup truck a hacksaw and new bolt cutter with price tag still attached, though it had been used as it was chipped.

The third policeman to arrive was Clyde Watson. In the course of further investigation D. E. Corley, co-owner of the Corley-Wetsel Truck Company, was contacted and arrived at the truck lot. Corley testified that there were two vans which had the wheels removed and were upon wooden blocks ¹ located at the back of the main buildings on the rear of the lot. One of these vans contained spare parts while the other held tires, tire tubes and antifreeze. This second van, referred to as the 'tire van,' held an inventory of approximately $10,000 value. Corley said that the vans had been padlocked at the close of business on the afternoon of December 6, 1974. However, the officers and Corley found that the padlocks to both vans were missing and the doors to the tire van were open, although the parts van door was still closed. The padlocks were never located.

Corley and Officer Watson gave testimony relating to the discovery of metal particles under the position in which the locks had been on that afternoon. Further testimony was given by Corley and Mrs. Donnie Hudgens that the opening of the door to the van would set off the burglar alarm system.

In examining the tire storage van, Corley found nothing missing. However, he did find inside the van some chewed wooden matches which he said had not been in the van when it was locked on the afternoon of December 6. Officer Watson identified these matches as five in number. Watson also found four chewed wooden matches inside the cab area of the pickup truck in which appellant was seated when stopped. Officer Watson added that while talking to appellant's companion that night the man was chewing on matches similar to the samples found in the storage van and in the cab of the pickup.

Officer Watson also found a tie tack and backing on the ground ten feet south of the storage trailer. Appellant was wearing a block western hat on the night of the burglary which had two holes in the center and top. In comparing the tie tack and backing to the holes in the hat, Officer Watson found that the tie tack fit the holes.

In...