Merkel v. State

• Decision Date: 02 January 1963
• Docket Number: No. 35112,35112
• Citation: 363 S.W.2d 267
• Parties: Aubrey MERKEL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 267

363 S.W.2d 267

Aubrey MERKEL, Appellant, v. The STATE of Texas, Appellee.

No. 35112.

Court of Criminal Appeals of Texas.

Jan. 2, 1963.

No attorney on appeal for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Presiding Judge.

The conviction is for felony theft; the punishment, enhanced under Art. 63 P.C. by two prior convictions for felonies less than capital, life.

Appellant has filed no brief; there are no formal bills of exception.

Among the corporeal personal property the indictment alleged were stolen were the following items, with the value alleged and the value shown by the state's evidence:

                                               Value shown
                Description            Value   by State's
                of property           alleged   evidence
                --------------------  -------  -----------
                1 hydraulic jack      $15.00     $20.00
                1 chain boomer          7.50      10.00
                2 ratchet wrenches      7.50      10.00
                9 open end wrenches    10.00      15.00
                3 box-end wrenches     15.00      22.00
                1 grease gun            4.00       4.00
                1 Nylon Fleece lined
                    Jacket             10.00      10.00
                

A witness called by the defense testified that the value of the items other than the jacket would be $48.54. Taken in the light most favorable to the state, the testimony of the defendant's witnesses shows that the value of the property taken exceeded the reasonable market value of $50.

In regard to his return to the area where the truck was parked, Mr. Wall related:

'This man here had his car parked behind the cafe and he had everything loaded but the jack, and when he saw us he stood up and looked at us. When he saw us, he opened the back door, throwed the jack in, and I told Gene, I said, 'That looks like my jack'. So, as I got out of the pickup he jumps in his car and goes over to Mr. Burnham's scales, behind his feed store.

'Q. Who does? A. Mr. Merkel.

'Q. That is this defendant? A. Yes, sir.

'Q. You identify him as the man? A. Yes, sir.

'Q. Good. A. And when I looked in my tool box, well, all my stuff was gone, and looked in the truck, and spark plugs and everything was gone out of it.'

Three persons who observed appellant removing the tools from the truck testified. One of them, Clay Lynn, an eleven year old boy, had taken down the license number of the car into which appellant placed the items taken from the truck.

While appellant was being placed under arrest his woman companion drove off in the car but was stopped within ten minutes. A...