Grant v. State, 57828.
| Citation | 566 S.W.2d 954 |
| Decision Date | 21 June 1978 |
| Docket Number | No. 57828.,57828. |
| Parties | Mark GRANT, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Robert C. Roe, Jr. (on appeal only), Fort Worth, for appellant.
Tim Curry, Dist. Atty., Marvin Collins, Howard Borg and Candyce Howell, Asst. Dist. Atty., Fort Worth, for the State.
Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
This appeal is from an order revoking probation. On September 13, 1976, appellant pled guilty to the offense of delivery of more than one-fourth ounce of marihuana, and his punishment was assessed at three years in the Texas Department of Corrections. Imposition of sentence was suspended and probation was granted, subject to certain terms and conditions. Condition (a) of the order of probation was that appellant "commit no offense against the laws of this or any other state or the United States."
On May 13, 1977, the State filed a motion to revoke probation alleging that on or about May 4, 1977, appellant committed the offense of theft. On June 13, 1977, following a hearing on the State's motion, the court revoked appellant's probation, finding that he had committed theft on May 4, 1977.
The sufficiency of the evidence is challenged.
The record reflects that on May 4, 1977, between 11:00 and 11:30 p. m., a Toro lawnmower was taken from Jesse Standley's vehicle which was parked in front of May and Kay's Beer Lounge located at 3536 Hemphill in Ft. Worth. Standley called the police on finding that the lawnmower had been taken. He testified that he did not see anyone take the mower.
Officer Salinas of the Ft. Worth Police Department was patrolling in the vicinity and immediately before receiving the radio call informing him of the theft noticed two boys and a man pushing a lawnmower in the parking lot of the Starlight Bar, which is located at 4221 Hemphill. Upon receiving the radio call, Salinas proceeded to May and Kay's Beer Lounge and contacted Standley. After receiving a description of the lawnmower from Standley, Salinas went back to the Starlight Lounge where he had earlier seen the mower and three individuals. After making his investigation at the scene, appellant was placed under arrest. Salinas testified that when he had earlier seen the three individuals with the lawnmower appellant was the one pushing the mower.
Charles Sheppard testified for the State and related that he had bought the lawnmower in question from a Lonnie Weehunt in the late evening of May 4, 1977. He stated that others at the Starlight Lounge knew that he was in the market for a lawnmower but that he did not tell appellant this. Sheppard testified that he arrived at the lounge after 10:00 p. m. on May 4, 1977, and did not leave until after the police arrived. He stated that he had played a few games of pool with the appellant during this time period and that he did not see appellant leave the bar although he could not testify for sure that appellant never left. Sheppard testified that it was Weehunt who approached him concerning the buying of the lawnmower and that it was Weehunt who received the purchase money. Sheppard further stated that he asked the appellant to help him load the mower that he had purchased from Weehunt into his truck due to the fact that he suffered from some physical incapacity. Sheppard related that as far as he knew the only connection that appellant had with the transaction was the fact that appellant helped him put the mower into his vehicle. Sheppard indicated that the first time that he saw the lawnmower was when he saw an individual, later identified as Weehunt, unload the mower from his car. He further testified that he did not see appellant come to the bar with the lawnmower. A discussion was held concerning price and appellant came out of the bar and helped load the mower into Sheppard's car. Although the record is not clear, appellant apparently was present during a part of these discussions.
Lonnie Weehunt testified for the defense and stated that he purchased the mower in question from an unidentified man a short time before he sold it to Sheppard. He testified that appellant did not steal or take the lawnmower and that appellant did help load the mower into Sheppard's car. He further stated that he was paid by Sheppard for the sale of the mower. He testified that Sheppard told him that he was looking for a mower and that appellant was not present when this discussion transpired. He...
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...The burden of proof is on the State, and it is incumbent on the State to prove every element of the offense. See Grant v. State, 566 S.W.2d 954 (Tex.Cr.App.1978). The evidence in this case is not rendered sufficient by the trial judge's apparent disbelief of appellant's * * * * * * "Mere pr......
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