Toney v. State , 1979 Tex. Crim. App. LEXIS 1561 ( 1979 )

OPINION

W. C. DAVIS, Judge.

Following appellant’s conviction for burglary, the trial court assessed punishment at eight years confinement. On appeal three grounds of error are presented including a challenge to the sufficiency of the evidence. We affirm.

The record reflects that on May 8, 1975, approximately $3,000 worth of merchandise was taken in the burglary of the Amherst Variety and Department Store in Amherst, Texas.¹ Investigation at the scene produced a bundle of clothing wrapped in a bedspread in the alley behind the store. Officers also testified that footprints found in the alley appeared to have been made by a female.

Evidence adduced by the State established that appellant and a companion (Deborah Davis) were in the store on May 7th in the late afternoon. At closing time, appellant and her friend were asked to leave by the owner who proceeded to lock the building. No one had permission to enter the store.

The record reflects that there were no witnesses to the break-in and burglary of the store. However, at about 5:30 a. m. on May 8th, the occupant of the residence behind the store was awakened by loud noises and arose in time to see a “light top” convertible with the trunk lid open drive down the alley. Appellant and Davis traveled to Amherst from Lubbock in a green Oldsmobile convertible having a light-colored top.

The owner of the adjoining business discovered the burglary on May 8th. The ensuing police investigation focused on appellant, Deborah Davis, and appellant’s niece, Gracie Wilson, who lived in Amherst.

Sheriff E. D. McNeese went to the home of Gracie Wilson in Amherst; however, appellant was not there. Sheriff McNeese spoke briefly with Wilson, then went next door to an adjacent vacant house. Returning shortly, the Sheriff found some clothing lying at the edge of the yard of the vacant house. This clothing was later identified by the store owner as part of the merchandise removed during the burglary.

On May 20th, Sheriff McNeese spoke with appellant at the Lubbock County jail where she was in custody for probation revocation. In the course of the conversation, Sheriff McNeese noted that appellant was wearing clothing resembling that taken in the Amherst burglary. This clothing, confiscated in a later raid on an apartment in Lubbock, was identified by the store owner as merchandise taken during the burglary.

In mid-August 1975, the Lubbock Police Department executed a search warrant on an apartment leased by appellant and Davis. The warrant specified clothing articles taken in a burglary in Henderson, Texas. One of the officers, Texas Ranger Jackie Peoples, was aware of the Amherst burglary. In the course of this search, Ranger Peoples seized or directed the seizure of several articles of clothing resembling those taken in the Amherst burglary. This clothing was taken to the police department in Lubbock where it was later identified as property taken in the Amherst burglary.

The identification of all the clothing articles by the store owner was by color, type, style and brand name based on personal familiarity with the merchandise in the store. Appellant argues such an identification based on “quality” discredits the testimony and destroys any link between appellant and the burglary. It is for the jury to determine the credibility of testimony and to determine the weight to be given such testimony. On appeal, our task is to review the evidence in the light most favorable to the verdict of the jury. We are therefore bound to accept the jury’s expressed belief that the clothing identified was in fact merchandise removed from the Amherst store. Further, we hold the evidence, albeit circumstantial, is sufficient to sustain appellant’s burglary conviction. Robinson v. State, 570 S.W.2d 906 (Tex.Cr.App.1978). Appellant was shown to have been in personal possession of clothing taken from the Amherst store on May 20th, twelve days after the burglary. Such recent possession, unexplained by the record, provides sufficient evidence to sustain appellant’s conviction. McKnight v. State, 399 S.W.2d 552 (Tex.Cr.App.1966).

In her second ground of error, appellant complains that the trial court erred in permitting the State to examine the jury panel on punishment during voir dire. Appellant supports this ground by pointing to the fact that she had not yet elected to go to the jury for punishment. Further, appellant argues that by not making a timely election to go to the jury for punishment, she has elected to go to the judge.

Appellant argues correctly that where no election is filed, the trial court has the duty to assess punishment. Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977). Article 37.07, Sec. 2(b), Vernon’s Ann.C.C.P. provides:

“. . . Except as provided in Article 37.071, if a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, . (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury.”

Under the language of Art. 37.07, See. 2(b), Vernon's Ann.C.C.P., failure to make an election in writing to have the jury assess punishment is not an election to have the judge assess punishment. Rather, the failure of appellant to file an election merely means that by operation of the Code of Criminal Procedure, the court must assess punishment. Until the time has passed to make this election, the trial judge cannot know whether the jury or the bench will assess punishment. Our task, therefore, is to determine when an election must be filed, then determine if that time had passed.

The election must be made at the time the defendant enters his plea in open court. This has been interpreted to mean at the time the defendant makes his plea to the indictment before the jury. See Donald v. Jones, 445 F.2d 601 (5th Cir. 1971). In appellant’s case, the alleged error occurred during voir dire of the jury panel, clearly well before any plea to the indictment by appellant. Therefore, appellant still had the election available and could choose to exercise it. Under such circumstances, appellant cannot complain that the State examined the jury panel on punishment. The trial court properly overruled appellant’s objection.

In her final ground of error, appellant argues that the admission, over objection, of the search warrant, supporting affidavit, and officer’s return constituted prejudicial evidence of an extraneous offense. These documents referred to clothing taken during a burglary in Henderson, Texas, and as appellant points out, the evidence never showed that appellant perpetrated the Henderson burglary.

Appellant’s contention on this ground comes within our decision in Ward v. State, 581 S.W.2d 164 (1979), and cases cited therein. Therefore, appellant’s third ground of error is overruled.

The judgment is affirmed.

1 . The majority of this merchandise consisted of men’s and women’s clothing. Some bed linens were also taken.