Dove v. State, 39450
| Decision Date | 20 April 1966 |
| Docket Number | No. 39450,39450 |
| Citation | 402 S.W.2d 913 |
| Parties | Glen Ray DOVE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Robert D. Batjer, Jr., Nelson Quinn, Abilene, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is burglary with a prior conviction for burglary alleged for enhancement; the punishment, 12 years.
The witness Dugan testified that he was employed by the Mac Andrews Appliance Store, that at the close of business on October 22, 1964, he locked up the store and that on the following morning when he came to work, the officers were there investigating a burglary.
Robert Andrews testified that he opened his son's place of business on the morning of October 23, 1964, and discovered that the door to the safe had been forced open, that a vent in the air conditioner in the ceiling had been broken in, that the back door, though closed, was not latched and that a stereo, several radios and some money were missing.
Mac Andrews testified that the serial number on a stereo and a transistor radio which were returned to him by the police corresponded exactly with those on the invoices in the files of his business.
Parole Officer Spiller testified that appellant had been paroled under his supervision in July 1964, and that on November 4, appellant appeared at his office to make his monthly parole report. During this interview he ascertained that appellant had made misrepresentations about his employment and was unable to explain satisfactorily the sum of money which was in his possession, at which time the parole officer reprimanded appellant for leaving the county without permission.
Parole Officer Linn testified that he was present while appellant was being interviewed by Spiller, and he went out to the street to check the license number of appellant's auto and found a Betty Moore seated therein and that on the front seat a portable radio was in open view. He accompanied Betty Moore back into the building, and subsequently he and Officer Spiller took appellant and Betty to an apartment where they found a stereo and other transistor radios which were later identified by Mac Andrews as having come from his store. At the time such evidence was offered, appellant's counsel said to the court, 'We have stated that we will not object to the search. * * *' A further examination of the automobile revealed a paper sack containing quarters, a pair of tin snips, a coal chisel, several large screw drivers and a four pound sledge hammer.
Sgt. Emerson and Lt. Strickland also testified that they accompanied the other officers to the apartment where appellant said he lived. They further testified that appellant opened the door for them when the apartment was searched, that they also found evidence in the form of letters and women's clothes that Betty Moore lived in and shared that apartment with appellant, and that at 2:30 that afternoon appellant was booked for investigation of a parole violation.
The prior conviction was established by proof and by stipulation.
Appellant did not testify in his own behalf, but called his mother who testified that on the night in question she had gone to an apartment where appellant resided with Betty Moore and that the two of them accompanied her to her rural home where they spent the night.
We shall discuss the contentions advanced by counsel by brief and in their argument.
It is appellant's primary contention that the unexplained possession of recently stolen property as shown by the record is insufficient to support this conviction for the burglary in question. Reliance is had upon the holding of this Court in Prather v. State, 128 Tex.Cr.R. 342, 81 S.W.2d 528, where this Court said that the presence of stolen property in a house occupied by Ike Prather, Sibyl Norton and Ike's brother, Clifford and his wife, was not sufficient standing alone to sustain the conviction. The Court there held that appellant's brother, who was shown to have been an occupant of the house, was...
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Hopkins v. State
...White v. State, 444 S.W.2d 921 (Tex.Crim.App.1969); Wheeler v. State, 413 S.W.2d 705 (Tex.Crim.App.1967); Dove v. State, 402 S.W.2d 913 (Tex.Crim.App.1966); Gaines v. State, 400 S.W.2d 925 (Tex.Crim.App.1966); Harris v. State, 375 S.W.2d 310 (Tex.Crim.App.1964); Miller v. State, 79 Tex.Cr.R......
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...stolen property, taken from the building, was sufficient to sustain his conviction for the burglary."); compare Dove v. State, 402 S.W.2d 913, 915 (Tex.Crim.App.1966) (defendant's unexplained possession of recently stolen property in apartment that he shared with someone whom jury could hav......
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...in which a stereo and transistor radio taken in a burglary were found in an apartment occupied by the defendant and a woman. 402 S.W.2d 913 (Tex.Crim.App.1966). In dealing with the matter of exclusiveness, the court found that the jury might reasonably have concluded that the woman was phys......
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