Hankins v. State

OPINION

CLINTON, Judge.

Appeal is taken from a conviction for the offense of burglary of a building. Punishment was assessed by the jury at 20 years confinement in the Texas Department of Corrections.

Appellant complains of the trial court’s failure to submit to the jury his timely requested charge regarding the law of circumstantial evidence at the guilt-innocence phase of the trial. The sufficiency of the evidence to show appellant’s guilt for the burglary of a building is not challenged; however, in light of our disposition of this appeal, a detailed statement of the evidence adduced is necessary.

Michael Moore, an officer assigned to the vice division of the Killeen Police Department, testified that on March 20, 1978, he responded to a call at The 439 Pawn Shop located in the East Lake Mall in Killeen. On arrival at the scene, he discovered the back door to the pawnshop open.¹ Moore and his partner entered the store and upon closer inspection discovered a number of empty gun boxes strewn on the floor next to a glass display case.² A search of the exterior of the building revealed a second possible entry point, an opening through the air conditioning system. Moore testified that there was a rope dangling from the roof to inside the building, and that this was probably the means used to gain access into the building. In addition to the rope, Moore also located a saw, a drill, a chisel and a pair of boots on the roof. The boots, on closer inspection, contained a wallet bearing identification belonging to appellant and a pair of car keys.

Don Morgan, manager of The 439 Pawn Shop, testified that he arrived shortly after being called to the scene by the Killeen Police Department. A review of the store’s stock and premises revealed that thirty five new handguns with an invoiced wholesale value of $1,338.71 had been removed from display cabinets in the front of the store. Two of the guns stolen were .22 caliber derringers equipped with over-under barrels and white fake pearl handles, and another was a .357 magnum with a long barrel. They were never recovered. The police were unsuccessful in lifting any fingerprints from the pawnshop.

Allan L. Mason was the third witness called by the State to testify. On the evening in question, Mason was standing outside his apartment complex on Bundrant Street when he noticed in the distance a man in a jacket holding a bag from which he took what appeared to be a .357 magnum. Upon noticing this suspicious person, Mason returned inside and called the Kil-leen Police Department. When Mason returned from the phone, the individual was gone. On direct examination by the State, Mason could only testify that the individual he saw that evening looked similar to the appellant. Mason was not asked to make an incourt identification.

David Fails testified that on March 20, 1978, appellant was a temporary resident at the Fails home at 1116 Robindale. On the prior evening, appellant did not return to the Fails residence, and was not seen there until sometime between 9:15 a.m. and 9:30 a.m. the next morning. Fails stated that it was then that he confronted appellant about a billfold containing appellant’s identification which had been found at the scene of a pawnshop burglary. Appellant claimed no involvement with the burglary, stating that he had lost his billfold several days earlier.

Randall Howard Carter, a friend of appellant, who also resided temporarily with the Fails, testified that on Thursday night, March 17, 1978, he and appellant had been at the Silver Spur Club, and while they were driving away from the club the clutch in appellant’s car broke. So, they left the car parked in a parking lot of Mickey’s Drive-In Grocery and took a cab to a motel. Carter stated that he and appellant were together through midafternoon on March 19, 1978. At that time, Carter and Fails dropped appellant off at the Silver Spur Club. Carter testified that he did not see appellant again until 8:00 or 8:30 a.m. on March 20, 1978.

It was on that morning that Carter says he had a conversation with appellant in which appellant indicated that he would have $1,200 by the end of the day. According to Carter, appellant then displayed two pistols which he claimed to have obtained from breaking into a pawnshop. According to Carter, appellant said he had about 36 guns in a brown case under the hood of his car. Carter related that shortly after his conversation with appellant, Mrs. Fails returned home and asked appellant to leave. After appellant left, Carter told Mrs. Fails what he had learned from appellant.

On the basis of facts related in that conversation, Carter and Mrs. Fails drove to appellant’s car. Carter testified that he opened the hood of the vehicle and observed a brown satchel. Both he and Mrs. Fails returned home, deciding not to contact the police about their discovery. Instead, Carter returned to appellant’s car with another friend three hours later. Once again the hood of the car was opened and a brown bag was observed. It was not until that night that Carter went to the Killeen Police Department to report what he claimed appellant had told him and also to report the observation of the brown bag under the hood of appellant’s car. After Carter related his story to the police, they informed him that he was also under suspicion in connection with the burglary. At the close of his testimony Carter admitted to several prior convictions.

Charlene Connor, a friend of appellant’s, testified that on March 20, 1978, she received a phone call from appellant asking her to cover with regard to his whereabouts earlier that day. According to Connor, appellant offered her $100 to say she and appellant had been together to anyone who inquired of his whereabouts.

Donna Fails verified her husband’s testimony that on March 20, 1978, appellant did not spend the night at their house. She, too, encountered appellant the following morning at her home, but at a different time than her husband. During appellant’s conversation with Mrs. Fails, he told her that he had lost his billfold at the Silver Spur. Mrs. Fails asked appellant to leave the house, and then she and Carter drove to appellant’s ear to look for a brown bag. Consistent with Carter’s testimony, Mrs. Fails claimed to have observed a brown bag under the hood of appellant’s car. On the advice of her husband, she decided not to go to the authorities.

Larry Weber, who was employed by Dixon Paving on March 20, 1978, testified that while working near Mickey’s Drive-In Grocery he observed an older model black Ford parked nearby. At some point that morning, Weber saw a man, woman and child arrive in a pickup truck and get out and look under the hood of the Ford. About 45 minutes after they left, a young man arrived. Weber observed him go to the car, open the hood and remove a brown case. The man took the case and walked into a wooded area. When the man returned a little while later, Weber noticed that he no longer had the bag. It was 3 hours later that Weber noticed 2 different men arrive in a pickup truck. They got out and looked under the hood of the Ford, and then they drove off.

Dan Smith, an investigator detective with the City of Harker Heights Police Department, said that a billfold he had lost a couple of days earlier. Appellant related that his employer had learned that appellant’s billfold had been found in a building that had been burglarized, and his employer was not sure which police department had recovered it.³ Smith testified that he had not yet learned that appellant was under suspicion for any offense, so he let him leave when the billfold could not be located.

Captain Dennis Lewis, commander of the criminal investigation division of the Kil-leen Police Department, testified that he was responsible for the fingerprint investigation at the pawnshop. He indicated that they were unable to retrieve any readable latent prints from either the scene or the equipment left behind. A thorough metal detector search of the general area was not productive. After appellant was arrested and while he was being checked into jail, Lewis observed what he believed to be numerous grass stains on the bottoms of appellant’s socks. Lewis ordered the socks confiscated and tested to confirm the nature of the stains.⁴

An employee of Mickey’s Drive-In Grocery, Otis Hopper, stated that earlier in the week an individual had asked if he could leave his car parked on the grocery’s premises. The individual explained that the clutch had gone out on the car, and that he would have the car towed later that day. Hopper testified, however, that as of 7:00 a.m. the morning of March 20, 1978, the man had not yet returned for his car.

Appellant took the stand at the guilt-innocence phase of the trial and maintained that on Thursday his car had broken down and that he had gotten permission to leave it on Mickey’s parking lot. On Sunday evening, he stayed at the Silver Spur until it closed around 2:00 a.m. Upon leaving the club, he encountered an individual, whom he knew only as “Joe,” and they smoked a “joint” together. Joe asked appellant to hold, or appellant was in the process of buying,⁵ a “package” of five kilos of marihuana; he placed the brown case under the hood of his disabled car. Appellant then left and went to a mobile home park where he believed a friend of his lived. He located what he thought was his friend’s car and fell asleep inside it. The next morning appellant was awakened by two strangers, who claimed to be the owners of the car. They informed appellant that his friend lived in a different mobile home, and was out of town for the weekend. The men agreed to give appellant a ride, and dropped him off at a Denny’s Restaurant. It was when appellant got ready to pay for his meal at the restaurant that he realized his billfold was missing. At the close of appellant’s testimony, both sides rested.

Appellant timely made his request of the trial court to include an instruction on circumstantial evidence. Such request was rejected. Then, appellant timely objected to the trial court’s failure to include the circumstantial evidence charge on that aspect of law as is required by Article 36.15, V.A. C.C.P. The trial court overruled appellant’s objection.

Appellant now -contends that the trial court committed reversible error in failing to submit a circumstantial evidence charge to the jury because there was no direct evidence from any source that appellant burglarized The 429 Pawn Shop, as alleged in the State’s indictment. We agree.

Generally, proof that a defendant has admitted or confessed to having burglarized a building is direct and not circumstantial evidence of the main inculpatory fact and a charge on circumstantial evidence is not required. Richardson v. State, 600 S.W.2d 818 (Tex.Cr.App.1980); Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977); Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974); Corbett v. State, 493 S.W.2d 940 (Tex.Cr. App.1973); Steel v. State, 459 S.W.2d 649 (Tex.Cr.App.1970). The admission or confession must unequivocally admit the commission of the very same act charged in order to constitute direct evidence. Only in this instance is the trial court relieved of the necessity of instructing the jury on the law of circumstantial evidence where the State is relying on the admission to supply proof of the main inculpatory fact. Ridyolph, supra; Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1973); Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387 (1948).

Even if an accused admits to the commission of a crime “it must be shown by the evidence and the confession of the accused that the crime admitted is the same crime for which the defendant is being tried if the circumstantial evidence charge is not given. If it is only by a process of inference from the admission that it can be determined that the accused committed the offense, the court should give the circumstantial evidence charge.”⁶ Ridyolph, supra. See also Casey v. State, 523 S.W.2d 658 (Tex.Cr.App.1975); Hielscher, supra; and Martinez, supra.

While it is clear in the instant case that appellant’s admission is direct evidence that he participated in the commission of an offense, it is equally clear that it does not constitute direct evidence that he was guilty of the burglary of The 439 Pawn Shop. See Casey, supra.

Our next inquiry, then, is to consider whether the evidence in the case falls within a narrow exception to the requirement that a circumstantial evidence charge is mandatory if the main fact to be proved is established only by inferences from other facts, as announced in Chapin v. State, 167 Tex.Cr.R. 390, 320 S.W.2d 341 (1959).⁷ The Court held in Chapin that when the facts established, though they be circumstances, stand in such relationship one to another that the only logical conclusion to be drawn therefrom is that the accused inflicted the fatal injury, then failure to charge on the law of circumstantial evidence does not constitute error.⁸ The rationale of such a rule is obvious; what is less apparent is determining the appropriate application thereof, for circumstances though sufficient to support an inferred jury finding of guilt may nevertheless fall short of excluding every other reasonable hypothesis.⁹ Indeed, it is in such a case that the accused’s right to the submission of a circumstantial evidence instruction is crucial. See Frazier v. State, 576 S.W.2d 617 (Tex.Cr.App.1978); Hielscher, supra.

In perpetuating the correct application of these principles of law, “each case must in a measure be tested by its own facts,” Patterson v. State, 416 S.W.2d 816, 819 (Tex.Cr.App.1967), considering the admission in light of all the other evidence. Ales v. State, 587 S.W.2d 686 (Tex.Cr.App.1979); Campbell v. State, 545 S.W.2d 791 (Tex.Cr.App.1977); Ridyolph, supra; Hogan v. State, 496 S.W.2d 594 (Tex.Cr.App.1973).

In the instant case, appellant told another that he had burglarized a pawnshop, possessed thirty six pistols and that he had made arrangements to get rid of the pistols by selling them for “around $1200.00.” Other evidence disclosed that The 439 Pawn Shop was burglarized during the early morning hours of March 20, 1978. Entry into the building was made through a hole in the roof, while exit was through the back door of the pawnshop. At the entry site, officers located a pair of boots, a saw, a drill, and a chisel. A number of guns had been removed from glass display cases in the front of the building. The stolen handguns were not found.

Many of the details surrounding the actual burglary of The 439 Pawn Shop are found to be missing from appellant’s declaration. Appellant’s statement makes no mention of when he committed the offense, nor is a specific time mentioned. Furthermore, appellant does not' give the name, location or description of the pawnshop he burglarized. And, finally, the record does not indicate one way or the other whether any other pawnshop in the area had recently lost handguns to a burglar.

No fingerprint evidence linked appellant to the scene of the burglary of The 439 Pawn Shop. Compare Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974). Appellant was neither connected by any witness to the scene of the burglary,¹⁰ nor to flight therefrom or any other attempt to cover his participation in the offense.¹¹ The State failed to establish any direct link between appellant and any fruit of the crime¹² or that any instrumentality of the crime was ultimately traced to appellant.¹³

On appeal the State argues that appellant’s admissions were sufficient to show appellant’s burglary of The 439 Pawn Shop. The State’s brief states in relevant part:

“The identity of the burglary is sufficiently shown by the admission that a pawn shop was burglarized when considered with the identity of the property taken and the finding of Appellant’s billfold, driver’s license, car keys and boots at the scene.”

While apparently not intended as a confession of error, we are constrained to agree with this statement. See Hielscher, supra. The jury was indeed relegated in resolving the issue of appellant’s guilt — that the burglary in which he admitted his participation was in fact the burglary of The 439 Pawn Shop — to a process of inference. We are, therefore, unable to reach the conclusion that the State’s case was not one of circumstantial evidence, Martinez, supra, and such degree of doubt clearly dictated the submission of appellant’s requested charge. Frazier, supra.

We hold that “where guilt must be inferred from circumstances in evidence, the trial court has the duty to give a charge regarding the law of circumstantial evidence, and it is not relieved of such duty by virtue of the fact that circumstances may strongly point to the accused.” Hielscher, supra, at 308. In refusing to submit appellant’s requested charge herein, the trial court committed reversible error.¹⁴

For the error in this regard, the judgment of conviction is reversed and this cause is remanded.

ODOM, J., dissents.

Before the court en banc.

1 . Moore testified that in his opinion it was the opening of the back door which triggered the magnetic burglar alarm.

2 . It was later determined that the guns were removed both from the locked display case as well as the underneath unlocked storage area.

3 . It appears from the record that Harker Heights is a separate political subdivision adjacent to Killeen.

4 . Ironically, appellant had come to the station-house on his own to report that his wallet was missing. Clearly skeptical, Captain Lewis warned appellant and took a voluntary statement from him. Though marked as an exhibit and identified by Lewis, the statement was not offered in evidence and does not appear in our record.

5 .The first account was given on direct examination; the further explanation came on cross-examination.

6 . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

7 . In Chapin, supra, the evidence illustrated a longstanding enmity between the accused and the deceased which ended late one night when the ill feeling was reactivated by the deceased. The accused was heard to say he “ought to kill” the deceased “or cut his throat.” Thereafter, two witnesses observed the accused enter the deceased’s vehicle where a fist fight ensued; however, no witness saw the accused stab the deceased. After the fight, the accused exited the vehicle and the two witnesses spoke with the deceased who responded in “a low mumbling voice similar to his usual voice when intoxicated and said that it was all right for them to go home.” The deceased’s body was found five hours later in his car and an autopsy established that the cause of death was two stab wounds to the chest. The accused admitted that he was angered by the deceased’s calling him names, and after deceased hit him, he opened his knife and the two fell into the automobile fighting. However, the defendant denied stabbing deceased in the chest, admitting only that he “might have cut the deceased on the wrist.”

8 . This rule has been restated many different ways, but ultimately, it has come to be known as “the close juxtaposition rule,” a rule “which basically dispenses with the necessity for a circumstantial evidence instruction where facts proven are so closely related to the main fact essential to guilt so as to be the equivalent of direct testimony.” Frazier v. State, 576 S.W.2d 617, 619 (Tex.Cr.App. 1978).

9 . “There is a difference between the facts being in such a juxtaposition to warrant an inference of guilt and facts being in such a juxtaposition as to be equivalent of direct testimony. The former, no matter how strong they are or how certain is the guilt of the accused, cannot justify a failure to charge on circumstantial evidence. The latter set of facts will occur only where the evidence is such that it is logically and practically the virtual same thing as direct evidence of the factum probandum. ” Riggins v. State, 468 S.W.2d 841, 846 (Tex.Cr.App.1971).

10 . Compare Ales, supra; Ridyolph, supra; Hogan, supra; Steel, supra; Patterson, supra; Chapin, supra. Compare also King v. State, 585 S.W.2d 720 (Tex.Cr.App.1979) in which the testimony of two witnesses connecting appellant to the scene a few minutes prior to the discovery of the theft, constituted the precise distinction in this regard between that case and the one before us.

11 . Compare Campbell, supra; Ridyolph, supra; Knight v. State, 538 S.W.2d 101 (Tex.Cr.App.1975); Corbett, supra.

12 . Compare Swift, supra; Corbett, supra; Patterson, supra.

13 . Compare Ales, supra; Ridyolph, supra; Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App. 1974); Swift, supra; Hogan, supra; Chapin, supra.

14 . The Court’s reversal on the failure to submit a circumstantial evidence charge obviates the need for us to address appellant’s other ground of error regarding the use of prior convictions.