Urtado v. State ( 1980 )

DISSENTING OPINION TO THE OVERRULING OF STATE’S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING

DOUGLAS, Judge.

On original submission, the panel held that the evidence was insufficient to support the conviction for attempted burglary of a habitation. The appellant and two girls were on the property without the consent of the owner. Appellant made a “cutting-like” motion across a window screen. The screen was cut. The majority upholds the panel opinion in holding that there was a reasonable hypothesis that appellant did not cut the screen and was not a party to the attempted burglary. In doing so, the majority gives credence to appellant’s testimony.

The credibility of the witnesses is left to the jury. The jury saw and heard the witnesses. It should be remembered that the evidence is insufficient only if there is a •reasonable hypothesis that an accused did not commit or was not a party to the offense. The test is not one that requires the State to disprove defense testimony. The test is not one that the State has to disprove any possibility that an accused is not guilty. Appellant testified that he was berating his women companions and ran his hand over the cut on the window screen that one of them had made. Is that a reasonable explanation? If he had not been involved, why was he pulling his hand in a cutting motion over the window?

Let us look at the evidence in the light most favorable to the verdict as we must. The jurors had the right to accept any of the defensive testimony and reject any part it did not believe.

Bob H. Johnson, the owner of the home, testified that he did not give appellant or either of his two companions, who were seen on the property, permission to go into the enclosed back yard or to enter his home. Before Johnson left his home to go on a trip, the screens on his house were about four months old and were not damaged. Before leaving on the trip, Johnson asked his neighbor, Tom DeLoach, to keep watch on his house.

Tom DeLoach, the neighbor, testified that he had a small son who was in' a fort where he could see into the Johnsons’ back yard. The son and one of his friends asked DeLoach to come into the fort. He climbed up into the fort and saw one male and two female Mexican Americans in the Johnsons’ back yard and related, “... Well, I saw the male making a cutting-type motion on Bob Johnson’s kitchen window, while the two females were standing about five yards away watching him.”

DeLoach got down from the fort and ran into Johnson’s back yard. The two girls met him about five yards from the gate. He asked the three, “Are you trying to break into that house?” The man started running first and the girls broke and ran. The man got into the car which was about a half block away. He started the engine and waited for the girls. DeLoach got the license number of their car. He asked his wife to call the police. Within less than ten minutes, the three were apprehended in the car in which they had fled.

Shortly thereafter, DeLoach and an officer went into Johnson’s back yard and observed “... a gash ten to twelve inches cut across the top of the window.” The gash was in the same window where appellant had been standing and the gash was in the same place he thought it should have been from appellant’s actions.

Appellant testified that he was forty-eight years of age. He related that at about 4:00 or 4:30 p. m., he took Hope Madrid and Vivian Valdez to look for housecleaning work. He stopped his car at one house and they got out, then returned saying that it was the wrong address. He drove them where they wanted to go. He stopped the car; the girls got out and walked about a block away. After about ten or fifteen minutes, he went to check on them. He related: “I found Vivian and Hope standing next to that left-hand side window there of the house and Vivian had a knife.” When he got there she had a knife in her hand cutting the screen up at the top, and “I told her to quit it, that she could get us inrtroublé”, and he went “... up close to that window .. . and felt it with my fingers to see if it was cut, and sure enough, it was cut into.” “And I told them: ‘Well, let’s get out of here because you did wrong, and we are going to get in trouble.’ ” He went out the back gate and he saw them talking to “this man” and “I kept on walking to my car.” The girls told him to run. He knew that they had done wrong and he started running, got in the car and waited until they had got there and then the three left.

On cross-examination, he testified that the girls who were with him were seventeen or eighteen years of age. He stayed in the back yard some four or five minutes. The man who came in the yard said to appellant, “ ‘You cut that screen’ because he seen me where I was holding it looking at the screen.” Appellant said he got excited and ran. He knew that the girls were trying to get into the house when they left. He related that a ten-inch cut on the screen was easy to see but later said that he had to run his hand over it to see if it had been cut.

Hope Madrid, who was called by appellant, testified that she was eighteen years of age. She was with appellant on the day in question at the house, and when they were arrested. She related that she and Vivian went to the front door of the house and knocked. When no one answered, the two girls went to the back of the house where Vivian pulled out a knife and cut the screen. Appellant then came back there and the man came up and all of them started running. Vivian threw the knife away. She related that they did not tell appellant what they were going to do.

The majority holds that there was a reasonable hypothesis that appellant was not a party to the attempted burglary. The corpus delicti of the crime was proved by the testimony of Johnson and DeLoach. The crime was again proved by Hope Madrid and also by appellant. The appellant’s connection with the crime was proved.

This Court has held the evidence to be sufficient in many cases when the proof showed that the accused was the driver of a getaway car. For example, see Gerzin v. State, 447 S.W.2d 925 (Tex.Cr.App.1969), cert. denied 398 U.S. 912, 90 S.Ct. 1710, 26 L.Ed.2d 73, and Davila v. State, 388 S.W.2d 944 (Tex.Cr.App.1965).

In the present case, the proof is undisputed that appellant was the driver of the getaway car. In addition, he was on Johnson’s property without consent. He could easily see the cut on the screen. He testified to the unlikely story that he ran his finger across the screen to see if it had been cut. According to his testimony, he saw that the screen was cut when he first arrived, and he stayed there some four or five minutes.

It is unlikely that appellant would run his finger across the screen and linger at the place when he knew the girls were trying to break into the house if he were not involved.

In addition to the above testimony, appellant fled the scene. Flight is evidence of guilt. The only thing left was for the jury to reasonably deduct from the evidence that appellant cut the screen or was a party to the offense.

All of the physical facts show that he was a party to the offense. This is not a weak circumstantial evidence case. The only thing left for the jury to determine was the intent of appellant. Under such circumstances no charge of circumstantial evidence would be required. The court instructed the jury on the law of parties to an offense.

In Hines v. State, 458 S.W.2d 666 (Tex.Cr.App.1970), the Court held that where the defendant was within the enclosed yard of a man who did not know him, after midnight, with a hand on the door, and he fled when a light was turned on, there was sufficient evidence to support a jury finding of guilt.

The jury, which is presumed to have been twelve reasonable people, found that appellant’s testimony and that of his witness was unreasonable. For this Court to hold that appellant’s testimony was reasonable, it must substitute itself for the jury as the trier of the facts. This should not be done.

The motion for ' rehearing should be granted and the judgment should be affirmed.

DALLY and W. C. DAVIS, JJ., join in this dissent.