LeBlanc v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: ONION
• Citation: LeBlanc v. State, 424 S.W.2d 434 (Tex. Crim. App. 1968)
• Decision Date: 21 February 1968
• Docket Number: No. 41069,41069
• Parties: Perry James LeBLANC, Appellant, v. The STATE of Texas, Appellee.

Page 434

424 S.W.2d 434

Perry James LeBLANC, Appellant, v. The STATE of Texas, Appellee.

No. 41069.

Court of Criminal Appeals of Texas.

Feb. 21, 1968.

Charles W. Gill, Houston (on appeal only), for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and Allen L. Stilley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Burglary; the punishment enhanced under the provisions of Article 63, Vernon's Ann.P.C., life.

Trial was before the court without the intervention of a jury upon appellant's plea of not guilty. A written stipualtion as to the two prior convictions for burglary alleged in the indictment for enhancement was entered into by the appellant, his attorney and the prosecutor. Said stipulation was in accordance with the requirements of Article 1.15, Vernon's Ann.C.C.P., as to such stipulations where a jury is waived in non-capital felony cases and the case is heard before court regardless of the plea entered.

At the outset appellant challenges the sufficiency of the evidence to sustain his conviction as to the instant offense, particularly because the state relied in part upon fingerprints found at the scene of the burglary. He contends there is no evidence to show the prints were not there prior to the time of the alleged burglary.

Houston Police Department officers testified that they made an investigation of a burglary alleged to have occurred in the City of Houston on April 23, 1965, at an apartment on the second floor of a building. Entry was gained by throwing a rock through the front window of the apartment, climbing up on a ledge and raising the broken window. The owner, Louis Green, had departed for a weekend visit to Louisiana at the time of the burglary. Appellant and Green were friends and worked across the street from each other, but Green testified he did not give the appellant consent or permission to break and enter the apartment. There is no evidence that the appellant ever visited Green in his apartment, or was seen there prior to the date of the burglary.

Officer Forrest Perry of the Houston Police Department testified that the prints which were lifted from the broken windowpane were placed there after the rock was thrown because the prints were split on either side of the jagged glass still in the window frame. After describing the position of the prints he related that 'it would have been impossible to have gotten those prints on the broken glass before the hole was knocked in it.' A fingerprint expert testified that he compared the fingerprints lifted from the jagged glass with fingerprints taken from appellant on the day of his arrest and that they were identical.

A 17-inch television set taken at the time of the burglary was recovered from the residence of the appellant three days after the alleged burglary.

Testifying in his own behalf, appellant denied the burglary and stated he purchased the television set from a person known to him only as 'Yickyboo' who frequented the 'Bloody Fifth' Ward in Houston. He admitted seeking the help of a juvenile in carrying the portable television set in question home after his purchase, but denied that he was carrying at the time a shotgun and items reported to have been stolen at the time of the burglary.

No objection was made to the fingerprint expert testifying that fingerprints found on the windowpane and examined by him corresponded to those of appellant's. On cross-examination of the officer Perry who had lifted the prints appellant himself established that a partial thumbprint was taken from the outside and two or three partial fingerprints were taken from the inside of the jagged glass remaining in the window frame. Further, appellant on cross-examination of this officer brought out the testimony quoted above that the fingerprints lifted...