Greer v. State
| Decision Date | 05 February 1969 |
| Docket Number | No. 41811,41811 |
| Citation | 437 S.W.2d 558 |
| Parties | Don GREER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Robinson & Wilson, Abilene, for appellant.
Jim D. Vollers, State's Atty., Austin, for the State.
The offense is burglary with the intent to commit arson; the punishment, 3 years' confinement in the Texas Department of Corrections.
Appellant's first ground of error challenges the sufficiency of the evidence.
To constitute burglary the entry must be with the intent to commit a felony or the crime of theft. Article 1389, Vernon's Ann.P.C. The intent, therefore, is an essential element to the offense of burglary and must be proved in order to sustain a conviction for burglary. 4 Branch's Anno.P.C., 2d ed., § 2520, p. 839. Further the specific intent alleged must be proved beyond a reasonable doubt by facts and circumstances which lead with reasonable certainty to the conclusion sought and not left to speculation and surmise. Mitchell v. State, 33 Tex.Cr.R. 575, 28 S.W. 475; Allen v. State, 18 Tex.App. 120. It follows, therefore, that there must be evidence not only showing the burglarious entry but also that the party at the time he entered had the specific intent to commit the felony alleged in the indictment. Sanchez v. State, 143 Tex.Cr.R. 345, 158 S.W.2d 801.
The indictment in the case at bar alleges the burglary was committed with the intent 'to wilfully set fire to and burn said house.' The fact of breaking and entering is always strong evidence of some bad or evil intent, but we are unable to conclude that the evidence is sufficient to show that the burglary herein was committed with the intent to burn the building in question--a prefabricated metal and tin structure with a concrete floor. Even the State's theory seems to be that it was appellant's motive and intent to burn his insured automobile stored in such building and not the building itself. Unfortunately, we have not been furnished with a brief by the State filed either in the trial court or here.
Even with that issue aside, however, we would still conclude that the evidence is insufficient to show appellant's connection with the alleged offense. The complaining witness, the owner of a garage, testified that appellant left his Dodge automobile for repairs at the garage at 4 p.m. on the day preceding the break in; that subsequently he returned to the garage that evening with some other men while such witness worked on a racing car; that after drinking some beer appellant and the other men left about 9 or 9:30 p.m.; that the following morning he (the witness) discovered the overhead door of his garage had been pushed in by an object of the same width of the average automobile and that a gasoline can which had on the afternoon before contained some high test gasoline was empty. The witness further related that near appellant's stored automobile there was a large 'black burned out area on the concrete' floor of the garage. Three to five feet away there was a fifty-five gallon drum of naptha. A chrome 'O' was found on the ground in front of the damaged overhead door. The fibreglass racing car in the garage appeared to have been scorched and appellant's stored automobile was 'sooted a little bit.'
After some investigation peace officers went to the home of the appellant where they observed a 1966 red Ford station wagon in his driveway with the letters 'O' and 'R' missing from the front of the hood with the front bumper slightly bent at the center thereof. Obtaining a search warrant, the officers returned to appellant's driveway, took the automobile into custody and took paint samples therefrom as well as from the damaged overhead door. Such paint samples were submitted to a chemist at the Department of Public Safety who testified that after examination he found them to be 'physically identical,' but that there could be other paints with the same origin.
There was no witness to the alleged burglary. The appellant was not shown to be in, near or around the garage after he left with the other men at approximately 9:30 p.m. the night before. There was no evidence that the appellant was abroad that night after such time. The State further made no effort to show the ownership of the red 1966 Ford station wagon 1 which supposedly was the instrumentality with which the burglary was committed or to demonstrate that appellant rode in, drove or exercised any control over the particular automobile from which the paint samples were taken or was even seen in or near such vehicle. The only evidence offered was that the station wagon was in the appellant's driveway the morning the alleged burglary was reported and was still there later when the search warrant was executed.
Further, it is observed that there was no showing that the 1965 Dodge Dart shown to be insured was the same Dodge Dart left at the garage by the appellant. 2 The owner of the garage testified he did not know 'exactly the year of it' (the automobile) and his later testimony on the subject was clearly inconclusive. 3
There was no evidence that appellant owned only one Dodge Dart nor was there any evidence of appellant's financial condition at the time. The 'black burned out area on the concrete' which did not burn the concrete itself was not examined by any expert. It was just assumed by the witnesses to have been caused by the gasoline being ignited.
'In criminal cases, a conviction may properly be had on circumstantial evidence alone. Indeed, circumstantial evidence is frequently just as convincing in a criminal case as direct evidence. To sustain a conviction on circumstantial evidence, however, the basic facts from which it is sought to infer the ultimate fact of guilt must be proved beyond a reasonable doubt by direct evidence. The basic facts must also be consistent not only with each other, but also with the ultimate fact of guilt sought to be inferred from the basic facts. In short, the circumstances relied on, when considered as a whole, must be of a conclusive nature; they must lead to a satisfactory conclusion that the accused is guilty and exclude all other reasonable hypothesis except guilt. They must produce, in net effect, a reasonable and moral certainty that the accused and no other person committed the offense charged. 24 Tex.Jur.2d, Evidence, § 729, p. 403.
'In criminal cases, a judgment of conviction, to be sustained on appeal must be supported by evidence that produces a moral certainty of the guilt of the accused to the...
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