*1 State, Tex.Cr.App., 513 also Smith 823, 829. the failure to contends Appellant record cannot be dis- the silent
object and of error because he ground his
positive of opportunity to correct have had no
would trial court did not deficiency if the
either request written jury’s
notify him was made.
when it merit. is also without
That contention in the request written was filed
The day it was made. of the cause on
papers for new later filed both a motion
Appellant new trial. amended motion for
trial and an now alleged the error asserted.
Neither before us contain a
Nor does record The exception
formal bill of on the matter.
ground error is overruled. judgment
The is affirmed. BULLARD, Appellant,
Charles Edwin Texas, Appellee. STATE
No. 51025. Appeals
Court of Criminal of Texas.
March 1976. *2 McDowell, (on
Pat appeal only), Wade, Henry Dist. Atty., Wilensky Steve Walker, James G. Asst. Dist. Attys., Dallas, Vollers, Jim D. Atty., and State’s McAngus, David Asst. Atty., S. State’s Aus- tin, for the State.
OPINION DALLY, Commissioner. appeal
This is an from a conviction for theft; felony punish- the offense of ment, by proof prior enhanced of two felo- ny provisions convictions under the of V.T. Code, 12.42(d), imprison- C.A. Penal ment for life. error,
In
grounds
appel-
numerous
(1)
lant contends that:
the evidence is in-
conviction;
support
(2)
sufficient to
ex-
erroneously
traneous offenses were
admit-
evidence;
(3)
ted in
the court failed to
jury
on the law of
instruct
circumstan-
evidence;
(4)
granted
tial
he was not
an
trial;
(5)
examining
the evidence is
finding
insufficient
to sustain
been convicted of the offense
punishment.
alleged for enhancement
favorably
viewed most
in support
When
Officer Edward Hardy of the Dallas Po-
verdict,
shows the
lice Department was working with Officer
Thomas, the
following:
complaining
James
Womack in the
being
surveillance
main-
witness,
p.
left his home at 2:30
m. on
tained on
Jiffy
Food
He
Store.
was in
1974;
when he returned at
October
6:00
a car parked less than one
yards
hundred
*3
day
m. on the same
he discovered that his
p.
away
store,
from the
watching the store
had
broken into and that numer-
home
been
listening
and
to a radio which was picking
among
ous items had been stolen.
Included
up
by
conversations broadcast
a hidden mi-
a
the items stolen were General Electric
crophone
worn
during
Officer Womack
portable
and white
television set
inch black
dealings
his
with Yvarra.
Hardy
Officer
component
system.
stereo
and a President
appellant
saw the
and “Foots” take a stereo
set
Thomas stated that
the television
was
store,
and a television set into the food
then
two or three months old and that he had
return to their car and leave. The officer
it;
for
he stated that
the stereo
paid $300
his
continued
surveillance of the store until
was six or seven months old
system
and
it closed at midnight;
closing
after
paid
he had
in excess of
that
it.
$400
store
placed
Yvarra
a number of items into
any
further stated that
decrease in
Thomas
car;
his
Officer Hardy then followed him
of the television and stereo
value
sets sub-
home. After Yvarra moved all save two of
sequent
purchase
to his
of those items was
house,
the items in his car into his
he was
negligible.
arrested and his house searched. Two of
Officer G. D. Womack of the Dallas Po-
the items recovered in the search were a
Department
lice
testified that on October
component
President
system
stereo
and a
10, 1974,
undercover,
working
keep-
he was
General Electric
portable
black and white
Store,
ing
Jiffy
under surveillance a
Food
set;
television
Hardy
Officer
stated that
manager
suspected
of which was
of
the television and stereo sets were the only
goods.
trafficking
stolen
Officer Wom-
ones of their respective tradename at Yvar-
ack stated that he and his confidential
in-
ra’s house.
parked directly
former were
in front of the
The various items seized in the search of
Jiffy
appellant
Food Store when the
and
Yvarra’s house were loaded
police
into a
another,
“Foots,”
up
nicknamed
drove
and
property
transportation
truck for
to the
ap-
went inside the food store. After the
police station. En
police
route to the
sta-
Yvarra,
pellant
spoke
and “Foots”
to Jose
collision;
tion the truck was involved in a
store, they
the man inside the food
returned
truck,
most of the property in the
including
car,
to their
retrieved a television set and a
sets,
the television and
badly
stereo
was
system
stereo
and carried them inside the
damaged. Nevertheless, complaining wit-
money
store. Yvarra handed some
ness
identify
Thomas was able to
the televi-
appellant and “Foots” and the two men
sion set and
system
stereo
as
ones taken
left.
Womack
Officer
and his confidential
4,1974.
from his house on October
Thomas
informer
then went
inside the
store
pointed out
there was some white
Yvarra;
arranged
goods
to sell some
paint
speakers
one
on
of the stereo’s
that he
inside,
they brought
goods
when
accidentally spilled on it when he
had
was
and his informer were directed to
officer
Thomas further
painting his room.
stated
place them behind the same meat counter in
appellant
gave
per-
that he at no time
back of which the
and “Foots”
possession of or exercise
mission to have
placed the
stereo sets.
television and
sys-
over
television set
control
his
or stereo
a
Officer Womack stated that he saw Gen-
Finally,
Hardy
tem.
Officer
testified that
portable
eral Electric
television set
counter;
he
Jiffy
returned to and searched the
Food
President stereo
system behind
Store; were no other
stated that he did not find either
he further stated
there
white portable
television or
the counter.
General Electric black and
stereo sets behind
evidence that the value
component
property
television set or a President
of
was
system at that
location.
less than
and there was some
stereo
$200
objection
admitted
to show
without
contends that the evi
property had a value of over
If the
$200.
is not sufficient to connect him to the
dence
proving
manner of
value did not meet with
alleged. The
where the
offense
rule
the approval
appellant,
it was incum
possession
recently
alone on
of
stolen
relies
upon
bent
him to voice his
at the
Ann.P.C.2d,
in 5 Branch’s
property is stated
time of the introduction of
testimony.
2650.
(Tex.Cr.
Turner v.
presump-
an inference or
“To warrant
App., 1972).
guilt
tion
from the circumstances alone
We find the
every
evidence of each and
possession,
possession
such
must be
felony
element of
theft
sup-
sufficient
recent,
personal, must be
must be unex-
*4
port
grounds
the
verdict. These
of
plained,
must involve a distinct and
and
error are overruled.
property by
conscious assertion of
the
defendant.”
appellant
complains
The
next
that
State,
(Tex.Cr.
v.
927
Jesko
458 S.W.2d
See
the
admitting
trial court erred in
evidence
State,
1970);
v.
App.,
Smith
It is timely also the evidence had been offered, give to value of the to charge insufficient show the refusal such a However, property appellant stolen. The for the first would error. have been the error appeal challenges preserved time on the evidence of was not for review because no specially value of the stolen items. Each of the such requested charge was offered items was shown to have a value of over and there was no that the court’s State, v. charge See Coronado 508 S.W.2d did not contain an $200. instruction on 1974). (Tex.Cr.App., The failure to circumstantial 373 evidence. See Articles 36.14 36.15, State, prove Taylor the market value of these stolen Y.A.C.C.P. 489 was not fatal when there was no (Tex.Cr.App.1973); items S.W.2d 890 Golden v. 816
State,
(Tex.Cr.App.1972).
475
273
with
S.W.2d
those on
3;
State’s Exhibit No.
at no
ground
This
of error is overruled.
time did Deputy Slovak testify that
fingerprints he had taken of
Appellant
the trial
asserts
court
were made
person
same
whose fin-
failing
grant
examining
erred in
him an
gerprints appeared on State’s Exhibit No. 3.
trial. Appellant’s contention is without
The State’s evidence is therefore insuffi-
merit;
the return of an indictment termi
cient
identify
as the de-
any right
nates
examining
to an
trial.
fendant who was convicted in Cause No.
State,
Brown v.
(Tex.Cr.
475
938
S.W.2d
D-7519-JI in Criminal District Court No. 2
App.1971);
State,
Harris v.
without were admitted. V.A.C.S.; 3737e, Arts. 3731a and Jones ONION, Presiding Judge, (concurring in State, (Tex.Cr.App.1973). part dissenting part).
Deputy compared agree fin I must that the case be remanded Slovak gerprints on No. 2 with hearing State’s trial new on court Exhibit he punishment, those had taken of the agree but cannot earlier Elizalde afternoon, they and testified that were 749 (Tex.Cr.App.1974), 507 S.W.2d (cid:127) by dissent, made person, only recently same decided without The State’s evidence was sufficient to iden should major- be overruled the “current” tify appellant ity. as the defendant who was
convicted in Cause No. C-70-6579-MN
(burglary) in the 195th Judicial District However, Deputy
Court in County. compare
Slovak was not the fin asked to
gerprints had taken of