Hankins v. State

• Decision Date: 18 November 1981
• Docket Number: No. 60914,60914
• Parties: Harden HANKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 191

646 S.W.2d 191

36 A.L.R.4th 1003

Harden HANKINS, Appellant, v. The STATE of Texas, Appellee.

No. 60914.

Court of Criminal Appeals of Texas.

Nov. 18, 1981.

On Rehearing March 1, 1983.

Don Busby, Temple, for appellant.

Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ODOM, CLINTON and TEAGUE, JJ.

OPINION

CLINTON, Judge.

Appeal is taken from a conviction for the offense of burglary of a building. Punishment was assessed by the jury at 20 years confinement in the Texas Department of Corrections.

Appellant complains of the trial court's failure to submit to the jury his timely requested charge regarding the law of circumstantial evidence at the guilt-innocence phase of the trial. The sufficiency of the evidence to show appellant's guilt for the burglary of a building is not challenged; however, in light of our disposition of this appeal, a detailed statement of the evidence adduced is necessary.

Michael Moore, an officer assigned to the vice division of the Killeen Police Department, testified that on March 20, 1978, he responded to a call at The 439 Pawn Shop located in the East Lake Mall in Killeen. On arrival at the scene, he discovered the back door to the pawnshop open. ¹ Moore and his partner entered the store and upon closer inspection discovered a number of empty gun boxes strewn on the floor next to a glass display case. ² A search of the exterior of the building revealed a second possible entry point, an opening through the air conditioning system. Moore testified that there was a rope dangling from the roof to inside the building, and that this was probably the means used to gain access into the building. In addition to the rope, Moore also located a saw, a drill, a chisel and a pair of boots on the roof. The boots, on closer inspection, contained a wallet bearing identification belonging to appellant and a pair of car keys.

Don Morgan, manager of The 439 Pawn Shop, testified that he arrived shortly after being called to the scene by the Killeen Police Department. A review of the store's stock and premises revealed that thirty five new handguns with an invoiced wholesale value of $1,338.71 had been removed from display cabinets in the front of the store. Two of the guns stolen were .22 caliber derringers equipped with over-under barrels and white fake pearl handles, and another was a .357 magnum with a long barrel. They were never recovered. The police were unsuccessful in lifting any fingerprints from the pawnshop.

Allan L. Mason was the third witness called by the State to testify. On the evening in question, Mason was standing outside his apartment complex on Bundrant Street when he noticed in the distance a man in a jacket holding a bag from which he took what appeared to be a .357 magnum. Upon noticing this suspicious person, Mason returned inside and called the Killeen Police Department. When Mason returned from the phone, the individual was gone. On direct examination by the State, Mason could only testify that the individual he saw that evening looked similar to the appellant. Mason was not asked to make an incourt identification.

David Fails testified that on March 20, 1978, appellant was a temporary resident at the Fails home at 1116 Robindale. On the prior evening, appellant did not return to the Fails residence, and was not seen there until sometime between 9:15 a.m. and 9:30 a.m. the next morning. Fails stated that it was then that he confronted appellant about a billfold containing appellant's identification which had been found at the scene of a pawnshop burglary. Appellant claimed no involvement with the burglary, stating that he had lost his billfold several days earlier.

Randall Howard Carter, a friend of appellant, who also resided temporarily with the Fails, testified that on Thursday night, March 17, 1978, he and appellant had been at the Silver Spur Club, and while they were driving away from the club the clutch in appellant's car broke. So, they left the car parked in a parking lot of Mickey's Drive-In Grocery and took a cab to a motel. Carter stated that he and appellant were together through midafternoon on March 19, 1978. At that time, Carter and Fails dropped appellant off at the Silver Spur Club. Carter testified that he did not see appellant again until 8:00 or 8:30 a.m. on March 20, 1978.

It was on that morning that Carter says he had a conversation with appellant in which appellant indicated that he would have $1,200 by the end of the day. According to Carter, appellant then displayed two pistols which he claimed to have obtained from breaking into a pawnshop. According to Carter, appellant said he had about 36 guns in a brown case under the hood of his car. Carter related that shortly after his conversation with appellant, Mrs. Fails returned home and asked appellant to leave. After appellant left, Carter told Mrs. Fails what he had learned from appellant.

On the basis of facts related in that conversation, Carter and Mrs. Fails drove to appellant's car. Carter testified that he opened the hood of the vehicle and observed a brown satchel. Both he and Mrs. Fails returned home, deciding not to contact the police about their discovery. Instead, Carter returned to appellant's car with another friend three hours later. Once again the hood of the car was opened and a brown bag was observed. It was not until that night that Carter went to the Killeen Police Department to report what he claimed appellant had told him and also to report the observation of the brown bag under the hood of appellant's car. After Carter related his story to the police, they informed him that he was also under suspicion in connection with the burglary. At the close of his testimony Carter admitted to several prior convictions.

Charlene Connor, a friend of appellant's, testified that on March 20, 1978, she received a phone call from appellant asking her to cover with regard to his whereabouts earlier that day. According to Connor, appellant offered her $100 to say she and appellant had been together to anyone who inquired of his whereabouts.

Donna Fails verified her husband's testimony that on March 20, 1978, appellant did not spend the night at their house. She, too, encountered appellant the following morning at her home, but at a different time than her husband. During appellant's conversation with Mrs. Fails, he told her that he had lost his billfold at the Silver Spur. Mrs. Fails asked appellant to leave the house, and then she and Carter drove to appellant's car to look for a brown bag. Consistent with Carter's testimony, Mrs. Fails claimed to have observed a brown bag under the hood of appellant's car. On the advice of her husband, she decided not to go to the authorities.

Larry Weber, who was employed by Dixon Paving on March 20, 1978, testified that while working near Mickey's Drive-In Grocery he observed an older model black Ford parked nearby. At some point that morning, Weber saw a man, woman and child arrive in a pickup truck and get out and look under the hood of the Ford. About 45 minutes after they left, a young man arrived. Weber observed him go to the car, open the hood and remove a brown case. The man took the case and walked into a wooded area. When the man returned a little while later, Weber noticed that he no longer had the bag. It was 3 hours later that Weber noticed 2 different men arrive in a pickup truck. They got out and looked under the hood of the Ford, and then they drove off.

Dan Smith, an investigator detective with the City of Harker Heights Police Department, said that a billfold he had lost a couple of days earlier. Appellant related that his employer had learned that appellant's billfold had been found in a building that had been burglarized, and his employer was not sure which police department had recovered it. ³ Smith testified that he had not yet learned that appellant was under suspicion for any offense, so he let him leave when the billfold could not be located.

Captain Dennis Lewis, commander of the criminal investigation division of the Killeen Police Department, testified that he was responsible for the fingerprint investigation at the pawnshop. He indicated that they were unable to retrieve any readable latent prints from either the scene or the equipment left behind. A thorough metal detector search of the general area was not productive. After appellant was arrested and while he was being checked into jail, Lewis observed what he believed to be numerous grass stains on the bottoms of appellant's socks. Lewis ordered the socks confiscated and tested to confirm the nature of the stains. ⁴

An employee of Mickey's Drive-In Grocery, Otis Hopper, stated that earlier in the week an individual had asked if he could leave his car parked on the grocery's premises. The individual explained that the clutch had gone out on the car, and that he would have the car towed later that day. Hopper testified, however, that as of 7:00 a.m. the morning of March 20, 1978, the man had not yet returned for his car.

Appellant took the stand at the guilt-innocence phase of the trial and maintained that on Thursday his car had broken down and that he had gotten permission to leave it on Mickey's parking lot. On Sunday evening, he stayed at the Silver Spur until it closed around 2:00 a.m. Upon leaving the club, he encountered an individual, whom he knew only as "Joe," and they smoked a "joint" together. Joe asked appellant to hold, or appellant was in the process of buying, ⁵ a "package" of five kilos of marihuana; he placed the brown case under the hood of his disabled car. Appellant then left and went to a mobile home park where he believed a friend of his lived. He located what he thought was his friend's car and fell asleep inside it. The next morning appellant was awakened by two strangers, who claimed to be the owners of...