Roach v. State

• Decision Date: 02 February 1966
• Docket Number: No. 39155,39155
• Citation: 398 S.W.2d 560
• Parties: Fred ROACH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 560

398 S.W.2d 560

Fred ROACH, Appellant, v. The STATE of Texas, Appellee.

No. 39155.

Court of Criminal Appeals of Texas.

Feb. 2, 1966.

Lawrence R. Green, Dallas, for appellant.

Henry Wade, Dist. Atty., Malcolm Dade, Harryette Bercu and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for burglary; the punishment, enhanced by reason of two prior convictions for felonies less than capital, life imprisonment.

The state's testimony shows that the prosecuting witness, W. M. Gardner, was the manager of a drive-in grocery store located at 3415 Oak Lawn Avenue in the city of Dallas. On February 19, 1965, Gardner left the store at 5 p. m., being relieved by an employee, Curley Washington. At 9 p. m., Washington closed the place and locked all doors. The following day when Gardner returned to the store at 5:30 a. m., he discovered that the building had been broken into and the place burglarized. Entry had been gained into the building through a window in a storeroom at the rear of the building. The window, which had been convered with plywood and mesh wire, was completely torn out. Inside the building a hole had also been broken through a wall between the storeroom and the main part of the building. Some fifteen cartons of cigarettes and other items, including lotion, shaving cream, razor blades, and chewing gum were missing from the building. In the investigation, by the officers, of the burglary, a button and a piece of cloth were found on a shelf to the left of the hole which had been made in the wall of the storeroom, inside the building.

It was further shown that at approximately 4:20 a. m. on the morning of February 20, 1965, Officers Vestal and Prichard, while on patrol in the 3100 block of Oakland Street, observed a man standing in 'the shadows' of an alley. At such time, the man, according to Officer Vestal, was 'adjusting his clothes or putting something into them * * * running his hands along on the inside of his clothes,' and, in the absence of the jury, he further stated that the man 'was lingering around up in between the buildings and up in the alley, in the dark.'

The officers proceeded to make a U-turn and when they returned to the location the man was out in the street on the sidewalk. Officer Vestal got out of the patrol car and then went to the man, who was identified as the appellant, and searched him. In the search, ten bottles of shaving cream, some razor blades, matches, and a pair of yellow gloves were found in appellant's pockets. After being searched, appellant was taken to the police car and left in custody of Officer Prichard. Officer Vestal then proceeded to the location where he had seen appellant standing in the alley by the side of the building, and there found two burlap bags full of cigarettes, shaving lotion, and cigars. Appellant stated at the scene that he had found the merchandise by the side of the building and had taken it out of the sacks and was going to try to sell it. He was then taken to the police station. At such time he was wearing a blue plaid cotton shirt which had several torn...