Hielscher v. State

• Decision Date: 10 July 1974
• Docket Number: No. 48715,48715
• Citation: 511 S.W.2d 305
• Parties: James Gaston HIELSCHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 305

511 S.W.2d 305

James Gaston HIELSCHER, Appellant, v. The STATE of Texas, Appellee.

No. 48715.

Court of Criminal Appeals of Texas.

July 10, 1974.

Marvin O. Teague, Houston, for appellant.

Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Andy Tobias, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for felony theft wherein the punishment, enhanced under Article 62, Vernon's Ann.P.C., was assessed by the court following a verdict of guilty at ten (10) years.

The indictment in the first paragraph charged the primary offense of felony theft alleging the appellant stole 'six guns of over the value of fifty dollars . . .' from S. M. Blok.

In six grounds of error the appellant challenges the sufficiency of the evidence to sustain the conviction for the primary offense and complains of the court's failure to charge the jury on the law of circumstantial evidence.

Denise Blok testified that on December 1, 1972, she had been to the hospital to visit her husband, and upon returning to her home at 2714 Lazy Spring in Houston about 3:45 p.m. she and her young son discovered the front door unlocked and the doorknob had scratch marks on it. She found some six guns, a digital clock radio, her sterling silver valued at $900.00 missing. She placed a value of the guns at $1,100.00 to $1,200.00. She identified State's Exhibit #2, a .38 caliber Smith and Wesson pistol bearing serial number 76J120, as one of the guns taken in the burglary.

Her husband, S. M. Blok, also identified the pistol above described as being his. Both Bloks related that they did not know the appellant and had not given him or anyone else permission to break and enter their house and take the items in question. Houston Police Officer Netters investigaed the burglary and theft and determined that pliers had been used to twist the doorknob.

Edwin John Kunkel testified that on December 12, 1972, he had an altercation with his son at his wife's place of business in Houston and had taken a pistol away from his son. It was turned over to the police who answered the disturbance call. He identified State's Exhibit #2 as that pistol.

Edwin Douglas Kunkel, who admitted he was on probation for possession of heroin, had been a narcotic addict, was now using methadone, and had been in the psychiatric ward of a hospital, acknowledged that his father had obtained the pistol in question from him, but claimed the correct date was December 11. He testified that on that date he picked up the appellant who was hitchhiking and that, after they stopped at his mother's shop, he grabbed the loaded pistol away from the appellant and the altercation with his father followed a short time later. While equivocal about dates, he testified that some days earlier in December, 1972, he had seen the appellant at his (Kunkel's) apartment with someone named Allan and the appellant had the pistol in question with him and offered to sell him a .30--.30 caliber rifle and another one with a big scope. He related the appellant told him that the rifles and pistol were stolen. After first denying that the appellant had told him where the pistol was stolen, he later related appellant informed him the pistol was stolen from Oshman's by reaching under the store counter while his companion distracted the salesman. Still later, he testified that when the appellant first brought the pistol to his apartment the appellant said 'he and Skippy had burglarized a place.' Kunkel did not know who Skippy was.

Kunkel also revealed that after his arrest on December 11th the sometime subsequently led officers to an apartment where he believed the appellant lived with Larry Latham, where two refles, a pistol box and some silverware were found by police officers.

Detective Maddox testified Kunkel led them to the apartment in question where they found Latham and two girls, one of whom revealed that the appellant slept there the night before. They revealed there was an outstanding felony theft arrest warrant for the appellant and in looking for him in the apartment they saw a pistol box which bore the same serial number as State's Exhibit #2, some shotguns and rifles and silverware in the kitchen. The silverware was returned to Mrs. Blok.

Detective Krampota generally corroborated Detective Maddox's testimony and testified that Mr. Blok was unable to identify the shotgun and rifle taken from the apartment.

The officers testified that, not finding the appellant, they then went at Kunkel's direction to Kunkel's apartment where they found the appellant and Karen (Susie) Hendricks, who lived there with Kunkel. Appellant was arrested. There was no showing he was in possission of any of the stolen items.

Patty Dawson, manager of the apartment complex where Latham lived, testified that his name was on the lease for apartment #130, but appellant's name was on a ledger as one of those who was responsible for the rent, and she had seen him coming and going to apartment #130.

Latham testified for the defense he lived at the said apartment #130 at 8650 Pitner with a girl named Sandy, and they and Sandy's sister were there on December 13 when Kunkel and the officers came to the apartment and found the items described. He related that Kunkel had been to the apartment on an earlier occasion and had brought a pistol, which he identified as State's Exhibit #2, and pistol box or case; that he was upset about his girlfriend and threatening appellant, who was not present; and that, when he left, he left the pistol box behind. He testified that appellant had not brought the silverware to the apartment, although he acknowledged appellant had 'moved in' during the latter part of November or the early part of December. He explained that he and his girlfriend, Sandy, had been at the apartment complex where Kunkel lived, that he had gone to Kunkel's apartment and upon his return Sandy was sitting on the hood of the car with a silverware box open. On cross-examination he admitted he had told Officer Maddox he had bought the silverware from an unknown individual at The Cue Club, but said he told a lie because of the way Maddox was treating him. He also acknowledged that he was serving a three year...