Ysasaga v. State

• Decision Date: 28 May 1969
• Docket Number: No. 42067,42067
• Citation: 444 S.W.2d 305
• Parties: Arcadio (Harvey) YSASAGA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 305

444 S.W.2d 305

Arcadio (Harvey) YSASAGA, Appellant, v. The STATE of Texas, Appellee.

No. 42067.

Court of Criminal Appeals of Texas.

May 28, 1969.

Rehearing Denied Sept. 23, 1969.

Richard T. Collard, Friona, R. H. Munsterman, Levelland, for appellant.

Jack Young, Dist. Atty, Mulshoe, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is burglary; the punishment, 6 years.

This is a companion case to Anders v. State, Tex.Cr.App., 445 S.W.2d 167.

All of appellant's grounds of error relate to the contention that the evidence is insufficient to sustain the conviction.

The record reflects that on January 11, 1967, the Tide Products, Inc. warehouse at Clay Corners in Parmer County was burglarized and 48 cases and 11 quarts of Treflan bearing Lot No. 2113 were taken at the time. Treflan, a pre-emergence selective herbicide that will kill weeds but not cotton, retailed in the area at $102.00 a case.

There was no witness to the burglary and no evidence was offered to show that appellant was in the vicinity at the time or was ever in Parmer County.

This then is a circumstantial evidence case where the State apparently relies upon the rule that unexplained possession of recently stolen property is sufficient to sustain a conviction for theft of such property, and for the burglary of the house out of which the property was stolen. See Adame v. State, Tex.Cr.App., 372 S.W.2d 545; Sharp v. State, Tex.Cr.App., 421 S.W.2d 663; 4 Branch's Ann.P.C., 2d ed., Sec. 2537, p. 866.

Buckman and Faulkner, Lubbock County farmers, who knew that Treflan had been stolen in that county learned from 'a Spanish boy' who was employed by Faulkner that he could buy Treflan for $75.00 a case. Buckman and Faulkner then made plans to make a purchase 'for the purpose of trying to locate where this stolen Treflan was coming from' believing that a Lubbock Treflan representative would reimburse them.

On the night after the alleged burglary in Parmer County Buckman and Faulkner and the 'Spanish boy' drove in the 'Spanish boy's' vehicle to the Chevrolet garage in Levelland where they saw tow men in a late model red and white Chevrolet pickup.

After the 'Spanish boy' had returned from the pickup they followed the pickup out of Levelland and down a dirt road. After a while the 'Spanish boy' pulled up in a side road and stopped. Some 10 to 20 minutes later the pickup returned and the 'Spanish boy' took the money from Faulkner to the men in the pickup.

After the counting of the money and a conversation in which one of the two men in the pickup spoke 'good Spanish' the 'Spanish boy' returned to where Buckman and Faulkner were and they then transferred ten cases of Treflan from the pickup to the 'Spanish boy's' vehicle. Back at Faulkner's house they discovered Lot Number L--2113 on such cases.

Neither Buckman nor Faulkner was able to identify the two men in the pickup but did obtain the license number of the pickup which was shown to have been registered in Eastland County to the appellant. The 'Spanish boy' was not called as a witness nor was his absence accounted for.

There was other evidence offered to show that the appellant and Anders had been seen together at or near the Levelland Chevrolet garage earlier mentioned from three to six times on various occasions.

Appellant was shown to be in the 'habit of loaning' his pickup to other people, to his caughter, Gloria DeLeon, to visit her in-laws overnight, and to his son, Arcadio, Jr., an ex-convict. Appellant's daughter related that her father was known as Harvey and Texas Ranger Renfro testified that appellant was the only Harvey Ysasaga with whom he was acquainted in the area.

The only other Treflan traceable to the burglary in question was ten cases sold by Joe Pat Anders alone to Ruben Brock, Jr., a Lamb County farmer on the night of January 17, 1967. This was established by Brock's testimony alone. This Treflan found its way into farmer Neil Wood's hands and was shown to bear Lot No. L--2113 when located on March 16, 1967.

The 40 cases of Treflan delivered to Brock on January 28, 1967, by Anders and 'a Spanish guy' called 'Harvey' in a late model red and white Chevrolet pickup were not shown to be Treflan taken in the alleged burglary. Further, Brock was unable to identify appellant as the 'Spanish guy' with Anders at the time even though he was with them some 20 to 25 minutes on the occasion in question. Two days later when Brock paid for the 40 cases and ordered 13 more cases Anders was alone as he was when he delivered the 13 additional cases to Brock. Altogether Brock received 63 cases of Treflan.

In Adame v. State, supra, and Sharp v. State, supra, which involved the rule apparently relied upon by the State, the defendant was clearly identified as the person in possession of property clearly identified as coming from the alleged burglary and refused or failed to make an explanation when approached by the officers. Such is not the case at bar.

No witness placed either the appellant or Anders near the burglarized warehouse at any time, and neither were identified as the two men in the pickup when the sale was made to Faulkner and Buckman, and the Treflan delivered to Brock on January 28 1967, was not shown to be property taken in the alleged burglary. ¹

Brock denied any knowledge of the burglary, but in view of his admission that he 'figured' the Treflan was stolen and his acts thereafter in aiding the sellers to dispose of it at a profit renders him an accomplice witness as a matter of law and the jury should have been so instruected, ² rather than having submitted the matter as a fact issue to the jury. Gonzales v. State, Tex.Cr.App., 441 S.W.2d 539; Smith v. State, 140 Tex.Cr.R. 301, 144 S.W.2d 894; Davidson v. State, 84 Tex.Cr.R. 433, 208 S.W. 664; Cummings v. State, 87 Tex.Cr.R. 154, 219 S.W. 1104; Chandler v. State, 89 Tex.Cr.R. 302, 231 S.W. 107; Newsom v. State, 143 Tex.Cr.R. 583, 159 S.W.2d 883; Jackson v. State, Tex.Cr.App., 388 S.W.2d 935. See Article 38.14, Vernon's Ann.C.C.P., n. 17.

Therefore Brock's testimony being that of an accomplice witness requires corroboration. Article 38.14, supra. Without Brock's testimony the evidence is insufficient to show that either the appellant or Joe Pat Anders was in possession of Treflan recently stolen from the burglarized warehouse.

The State further, however, relies upon evidence of flight. The Parmer County Sheriff was unable to locate appellant in Lubbock after March 28, 1967, when this indictment was returned, and the appellant was later found in the State of Idaho.

Though fight of an accused is not ground for presuming his guilt, it is still a circumstance from which an inference of guilt may be drawn. 23 Tex.Jur.2d, Evidence, Sec. 102, pp. 139, 140; Kemp v. State, 96 Tex.Cr.R. 152, 256 S.W. 264; Moore v. State, 122 Tex.Cr.R. 257, 54 S.W.2d 115. Presence, however, in the vicinity of a crime and flight are not alone sufficient to sustain a conviction. Cawley v. State, 166 Tex.Cr.R. 37, 310 S.W.2d 340, cert. den. 361 U.S. 920, 80 S.Ct. 266, 4 L.Ed.2d 188. Where evidence of flight has been received the accused may explain his actions. Chastain v. State, 97 Tex.Cr.R. 182, 260 S.W. 172...