Casarez v. State , 1971 Tex. Crim. App. LEXIS 1974 ( 1971 )

OPINION

ODOM, Judge.

This appeal is from an order revoking probation. The sole ground of error is whether the trial court abused its discretion in revoking the probation of appellant.

On February 8, 1966, appellant entered a plea of guilty to the offense of unlawful possession of a narcotic drug, to-wit: marihuana, and punishment was assessed at five years. The imposition of sentence was suspended and appellant was placed on probation. One of the terms and conditions of probation was that he “commit no offense against the laws of this state or of any other state or of the United States.”

On May 4, 1970, a motion to revoke probation was filed alleging that appellant violated the aforementioned term, in that he did on or about April 26, 1970, break and enter a coin-operated machine “with the purpose of committing the theft of money” therefrom.

A hearing was had on May 20, 1970, and upon completion of said hearing, the court found appellant “in violation of probation.” The trial court further reduced the punishment to two years,¹ and pronounced sentence.

The evidence reflects that at approximately 4:30 A.M. on April 26, 1970, Investigator R. A. Jeffreys and Patrolman Robert Tellez, of the McAllen Police Department, observed an individual, whom they later learned to be Pablo Rene Salas, standing beneath the canopy of a Conoco Service Station located at the intersection of 18th Street and Hackberry Avenue in McAllen. They noticed that Salas was standing “about two to three feet” in front of a coin-operated coke machine with a tire tool in his hand. They stopped to investigate, and ascertained that the coke machine had been broken into and that the coin boxes and automatic coin changers were missing. Further investigation revealed that the service station manager had removed the coin boxes when he closed the station, but the automatic coin changers were located at the scene, one lying near the coke machine and the other one lying “on the sand” beneath an Oldsmobile automobile parked about thirty feet away. There was no money in either of the coin changers.

When the officers approached the scene, Salas attempted to flee and Officer Tellez apprehended him by shooting him with a shotgun (using bird shot which injured him “not seriously, but it was painful”). Appellant was sitting in the right front seat of the Oldsmobile and Alejandro Delgado was standing by the driver’s side thereof. No one else was in the vicinity. Appellant was searched and the search revealed he had between two and three dollars in nickels, dimes and quarters in his pocket and he “had some loose sand mixed up with that money in his pocket.”

The owner of the service station did not testify. Appellant contends that “The State presented no evidence whatsoever showing (1) a lack of consent; (2) ownership or control of the coin-operated machine and (3) any showing that in fact the said coin-operated machine was burglarized * * * ”

Art. 1402a Vernon’s Ann.P.C., Sec. 2, provides:

“ ‘Enter,’ as used herein includes every kind of entry except one made with the consent of the owner of such machine, or of one in lawful possession thereof, or of one authorized to give such consent.”

Want of consent may be established by circumstantial evidence where, without fault on the part of the state, direct testimony cannot be produced. Dorsey v. State, 172 Tex.Cr.R. 311, 356 S.W.2d 943; Smith v. State, 123 Tex.Cr.R. 47, 57 S.W.2d 132; Lynch v. State, 70 Tex.Cr.R. 449, 156 S.W. 1182.

The alleged owner of the service station, Narciso Rodriguez, was unavailable and did not testify. The transcription of the court reporter’s notes reveals the following :

“MR. McINNIS (The District Attorney) : That is all. If the Court please, that is all except for this Narciso Rodriguez, who is the manager of the station and would like to recess this trial until in the morning.

“MR. PENA (Appellant’s Attorney): I told the Court I couldn’t be here tomorrow. I am in Brownsville.

“MR. McINNIS: Well, just a matter of putting on the owner of the place to show that he didn’t give these people permission to break in there, and Mr. Pena has a law partner, I believe, Mr. Roman Gutierrez.

“MR. PENA: I have two partners, but Judge Scanlan wants me in Court in the morning.”

The state’s attorney again requested a recess so he could be given an opportunity to get the witness; whereupon counsel for appellant asked for a conference with the court. Thereafter the hearing proceeded. Lack of consent was raised for the first time on appeal.

We conclude that, viewing the facts in this case in their entirety, there was sufficient evidence to show want of consent. Certainly, no fault on the part of the state is shown.

As to the “ownership or control of the coin-operated machine,” the record reflects the following:

“Q. (By the District Attorney) This Conoco Station that you have been referring to in front of which was located the coin-operated machine, has it been out there, located there, for some period of time?

“A. (By Investigator Jeffreys) Yes, sir.

“Q. And, do you know who was operating the Conoco Service Station at this time that this occurred?

“A. A subject named Rodriguez.”

The evidence was sufficient to show that the ownership of the coin-operated machine was not in appellant or either of his two companions. See Gonzalez v. State, Tex.Cr.App., 456 S.W.2d 53.

The evidence was sufficient tp show that the appellant acted with the others in the commission of the offense and was a principal. Stevens v. State, Tex.Cr.App., 461 S.W.2d 618; Tea v. State, Tex.Cr.App., 453 S.W.2d 179; Ibarra v. State, Tex.Cr.App., 444 S.W.2d 926. The cir cumstances showed a “breaking and entry” under Article 1402a, Sec. 1, V.A.P.C.

Viewing the evidence in the light most favorable to the trial court’s findings, we hold that no abuse of discretion is shown.

The judgment is affirmed.

1 . This, the trial court was authorized to do under Art. 42.12, Sec. 7, Vernon’s Ann. C.C.P., since more than one-third of the original term had been completed. Trevino v. State, Tex.Cr.App., 464 S.W.2d 859; Capuchino v. State, Tex.Cr.App., 389 S.W.2d 296; Beshear v. State, 169 Tex.Cr.R. 131, 332 S.W.2d 724.