Valdez v. State
| Decision Date | 16 December 1970 |
| Docket Number | No. 43334,43334 |
| Citation | 462 S.W.2d 24 |
| Parties | Emilio VALDEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Esir Tobolwsky, James H. Martin, Dallas, for appellant.
Henry Wade, Dist. Atty., John B. Tolle, W. T. Westmoreland, Jr., Edgar A. Mason and Harry J. Schulz, Jr., Asst. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is unlawfully breaking and entering an automobile with intent to commit theft (Art. 1404b Vernon's Ann.P.C.); the punishment, two years.
Trial was before a jury on a plea of not guilty and the jury assessed the punishment.
Paul Vega and Oscar Lopez Torres were jointly indicted with appellant, but appellant was separately tried.
Appellant's first three grounds of error relate to the sufficiency of the evidence to sustain the conviction.
The court charged on the law of principals and on circumstantial evidence.
Viewed from the standpoint most favorable to the state, the evidence reflects the following:
Milton Barath, the complaining witness, parked and locked his automobile at the Garden Oaks Apartments in Irving, Dallas County, where he lived, about 11 P.M. on March 20, 1969. When he returned to his car at 7 o'clock the next morning it was still locked, but the 'tachometer' that had been part of his car's 'console' and a seat cushion which had been in the car the night before were missing. The owner, Barath, gave no one permission to enter the motor vehicle or to take any property therefrom.
About 1:45 A.M. on said night James V. Blair, then a police officer of the City of Irving, saw a car traveling at 45 miles per hour in a 30 mile an hour speed zone. Some ten minutes earlier Officer Blair had received a radio broadcast which stated that occupants of a car which matched the description of the speeding car had been seen attempting to break into a motor vehicle at the Plymouth Arms Apartments. As he was stopping the speeding car the officer saw the passenger in the right front seat (which proved to be appellant Emilio Valdez) '* * * leaned forward * * * like he was trying to put something under the driver's section of the seat.'
When the car stopped, Oscar Torres, the driver, immediately got out of his car and walked fast back to the squad car.
As he approached the car in which appellant was seated, after checking the license of the driver Torres, the officer noticed some gear shift knobs, sun glasses, stereo tapes and a stereo tape deck in between the driver and passenger seats of the car.
The 'tachometer,' which was later identified by Milton Barath as that missing from his locked car, was found under or partially under the front seat of the car where appellant was seated. In addition to the tachometer, there was found in the car in which appellant was riding a screw driver and a knife (under the driver's seat), a license plate, an automobile thermometer, seven or eight gear shift knobs, six or seven stereo tapes, about five pairs of sun glasses and a stereo tape deck with dangling wires.
The evidence is sufficient to show that appellant was in possession of the recently stolen tachometer taken from the locked automobile, which property could not have been removed from the owner's car without a breaking and entry.
Possession of recently stolen property taken from the locked vehicle is sufficient to support a conviction for the offense charged in the indictment. Cohron v. State, Tex.Cr.App., 413 S.W.2d 112; Sharp v. State, Tex.Cr.App., 421 S.W.2d 663; Sullivan v. State, Tex.Cr.App., 433 S.W.2d 904.
Grounds of error one, two and three are overruled.
Ground of error No. 4 relates to the display of the items described and identified by the arresting officer as taken out of the automobile in which appellant was riding, before the jury during the trial and arguments, said items not having been introduced in evidence, and not being in any way connected with the automobile alleged to have been broken into.
The arresting officer described and identified the items in his testimony before the jury without objection. The fact that the items mentioned were not formally introduced in evidence as exhibits did not render the display of them before the jury error.
Ground of error No. 5 relates to the cross-examination of appellant at the guilt or innocence stage of the trial wherein he was asked and answered:
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The fact that the defendant, or any other witness in a criminal case, has been placed on...
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