Luevanos v. State , 1985 Tex. App. LEXIS 6971 ( 1985 )

OPINION

DIAL, Justice.

This is an appeal from a conviction for causing serious bodily injury to an elderly individual. TEX.PENAL CODE ANN. § 22.04(a)(1) (Vernon Supp.1985). The jury found appellant guilty as charged and the court assessed punishment at twenty-five years’ confinement.

Initially the accused complains that the trial court committed reversible error by refusing his request for a special charge to the jury on circumstantial evidence. This assertion of error is without merit. All elements of the offense charged must be proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970); Crocker v. State, 573 S.W.2d 190, 207 (Tex.Crim.App.1978). Where the trial court properly instructs the jury on the reasonable doubt standard of proof, a charge on circumstantial evidence is no longer necessary. Hankins v. State, 646 S.W.2d 191, 199-200 (Tex.Crim.App.1983) (opinion on State’s motion for rehearing). The first ground of error is overruled.

The accused next challenges the sufficiency of the evidence to support the guilty verdict. The standard of review for a sufficiency of the evidence question requires that we determine, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2790, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981). In the instant case, the State relied on circumstantial evidence. The same standard of review applies. Denby v. State, 654 S.W.2d 457, 464 (Tex.Crim.App.1983); Id. at 465 (McCormick, J., concurring); Freeman v. State, 654 S.W.2d 450, 456 (Tex.Crim.App.1983) (opinion on State’s motion for rehearing).

The complainant did not testify and therefore did not personally identify the accused. She did advise a police officer that she had been assaulted. The treating doctor testified that her injuries created substantial risk of loss of life. This is sufficient evidence to sustain a conviction under TEX.PENAL CODE ANN. § 22.-04(a)(1) if the accused can be identified.

An investigating officer testified he saw tracks in the ground in the area of the point of entry. They were similar to the tracks made by mud inside the complainant’s bedroom. He followed the tracks to the accused’s residence, which was three houses down the street. He went into the bedroom where the accused was sleeping and found a pair of tennis shoes with soles the same or similar to the tracks he had been following. There was fresh mud on the tennis shoes. The accused had particles of white paint on his left arm and all over his back. The chemist testified that these particles were the same color and had the same physical and chemical composition as paint removed from the window which was the point of entry in the complainant’s home. Both the sheets from the complainant’s bed and the jogging shorts that the accused was wearing contained blood stains and seminal stains.

Viewing this evidence in the light most favorable to the prosecution, which we must, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. No single item of evidence would have sufficed, but taking all the circumstances together, they point only to the guilt of the accused.

Appellant next alleges that the trial court committed reversible error in overruling his motion to suppress the physical evidence seized at appellant’s residence. He specifically objects to the seizure of the tennis shoes. The record reflects that appellant’s father allowed the officers inside his house. Once inside the house the officer observed the tennis shoes in plain view. A recognized exception to the requirements of a search warrant or probable cause is a search conducted pursuant to consent. Swink v. State, 617 S.W.2d 203, 210 (Tex.Crim.App.1981). The plain view doctrine is an exception to the warrant requirement which permits an officer to seize what he sees in plain view provided he is lawfully on the premises. DeLao v. State, 550 S.W.2d 289, 291 (Tex.Crim.App.1977). At that time, probable cause existed to arrest the accused and seize the other items of evidence pursuant to the arrest. Grounds of error three and four are overruled.

Finally, it is urged that a charge on the lesser included offense of recklessly or negligently causing serious bodily injury should have been submitted. There is no evidence in the record that the accused was guilty only of the lesser included offense; therefore, the charge was unnecessary. Salinas v. State, 644 S.W.2d 744, 745 (Tex.Crim.App.1983).

The judgment is affirmed.

TIJERINA, J., dissents.