*1 We conclude reject that evidence was appellant’s argument suf- We that ficient to show that the offense occurred fails show a felonious intent. nighttime at alleged indictment. sup- find the evidence sufficient We port pri- for burglary conviction of a Appellant contends that evi nighttime. vate residence at support dence is insufficient the convic tion in that there no evidence of felo Further we find the trial did court nious intent. not revoking its appel- abuse discretion in 48,217 48,218. probation lant’s in Causes
Appellant breaking concedes entering nighttime house in the raises judgments are affirmed. presumption entry was approved Opinion by the Court. Clayton to commit theft. intent See 526; Gar Tex.Cr.App., 493 S.W.2d 822; cia v. State, Tex.Cr.App., 457 S.
Leaderbrand v. 557.
W.2d
Appellant urges that rebutted his that he presumption by and that did break or commit a theft not Appellant, HODGE, Freddie J. apartment invitation of he entered the party. third Texas, Appellee. STATE provides Article V.A.P.C. Nos. 46757 46758. necessary there breaking to constitute should an actual Appeals Criminal Court of of Texas. except entry is made when burglary Dec. 1973. daytime.” Leaderbrand v.
supra. Rehearing On Feb. Rehearing April 3, Denied
The indictment private burglary of a offense of with the night with intent to commit
residence necessary property is not
theft. burgla
taken is for where the
ry Ash v. with the intent to commit theft. 703;
State, Tex.Cr.App., 420 Lead State, supra.
erbrand v. presence
Appellant’s explanation of his apartment numerous refuted
incriminatory A window circumstances. the screen near its latch and broken complaining witness removed after the apartment.
left her container kept stamps her food
which Mrs. Clark stamps on the floor and found Appellant
missing. was found appeared stamps pocket
food Ap- belong complaining witness.
pellant last name did know Jeremiah’s
or where he lived. *2 Jones, (Court-appoint-
Robert M. Dallas appellant. appeal), ed on Henry Wade, Atty., Dist. Ra- E. John pier, Hubbard, William L. Asst. Dist. Attys., Dallas, Vollers, D. State’s Jim Atty., Stevens, Buddy Asst. State’s Austin, Atty., for the State. OPINION ROBERTS, Judge. was convicted on two robbery and was sentenced to
sixty-five years’ imprisonment in each case.
Appellant single raises a ground of error appeal. in this ground error, In this urges that the court erroneously admitted evidence custody. that he had was arrested August 22, 1969, the robberies involved in these cases. Indictments were returned on September 22, however, of the year; same record reflects that on October 1969, appellant was transferred police Dallas Garland, Texas, officers from an investigation arising from an unrelated While in the of the Gar- police, appellant escaped. land At his trial for the offenses involved here, the appellant’s escape evidence of from the Garland was admitted to prove guilt. This was error. Ordinarily, evidence of from custody is admissible on the issue of See Gonzales v. 263 (Tex.Cr.App.1973).
However, this is
ordinary
not an
situa-
tion,
rarely
and has
arisen in this State.
has,
uniformly
When it
re-
(1919);
Court
Roberts v.
83 Tex.
jected
that,
ground
on the
Cr.R.
necting evidence,
guilt may
no inference of
escape
may
drawn from the
since it
urges
State
a careful reconsidera-
have
been
guilt
motivated
a sense of
question presented
tion of
ap-
arising
other,
from the
unrelated offense.
peal, particularly in light of the fact situa-
This Court has been unwilling
engage
tion before us.
speculation.
See Damron v.
255,
Upon
Tex.Cr.R.
(1910);
S.W. 396
examination of the
Tor
record
rence
310,
light
rehearing,
212 S.W.
State’s motion for
af-
then shifts to the defendant to show
longer agree with
I find that I can no
in-
firmatively
escape
is di-
escape in
majority, holding that the
rectly connected to some other transaction
stant case was not admissible.
and further show that it is not connected
undisputed facts in
case show
Escape and
with the offense on trial.1
September
was indicted
being evidence of
circumstantial
and that he
nature,
admissibility
its
is not conditioned
The record does
October
only
showing
guilt
on a
is the
reason-
reflect that he was
with commission
Tex.Jur.2d,
able
Evi-
Cf. 23
conclusion.
of another offense but
dence,
If the defendant offers
Sec. 143.
officers for
investigation of an unrelated matter.
cause,
sprung
have
its
some other
appellant urges
that the
from the
*4
to the
on trial remains
connection
offense
they
officers
in-
while
one,
logical
a
the evidence would still be
vestigating
totally
“a matter
unrelated to
admissible,
going
the defensive evidence
question.
the offenses in
.
.
. which
weight
People
of evidence. Cf.
bore no relation or
to the offens-
Yazum,
626,
v.
246
13
302
N.Y.S.2d
N.Y.2d
es
properly
on trial” was
admissible
196N.E.2d 263
However,
this case.
record shows
appellant
at
escape
the time of his
was
So,
ap
in this case the evidence of
under arrest and in custody only
pellant’s escape
flight
after he was ar
instant offenses. There is no indication
placed
custody
rested and
for the of
that he had made bond or that he had been
fenses for
trial
ad
which he was on
released from custody.
missible,
subsequent escape
his
custody
was from the
of officers of anoth
Evidence of escape
from
jurisdiction
er
investigating
who were
flight is generally held to be admissible on
matter other than that
issue of
g.,
State,
E. Gonzales v.
State,
was on trial. Cf. Crenshaw v.
Tex.
Tex.Cr.App.,
263;
492 S.W.2d
v.
Jackson
Cr.App., 389
S.W.2d
733;
454
Caw
ley
State,
37,
v.
166 Tex.Cr.R.
distinguishable
This case is
Dam
from
340, cert.
920,
denied
266,
361 U.S.
80 S.Ct.
State,
ron
255,
v.
58 Tex.Cr.R.
125 S.W.
his trial when he as a testified witness We hold support that to admis testify own behalf he was forced to sion of escape evidence of from concerning other charges and and flight it appear escape prosecution. Objection was made to this “ has some legal relevance to the because . . . the bill states that at prosecution. offense under supposed v. time of his he was un- 82 Tex.Cr.R. S.W. 487. order appear county der bond to at this term of ” excluded, such evidence the burden court and enter in this . . . case. 1. In Damron escape be in relation to more than one of- S.W. exception obviously defendant bill of fense . admissible all to rather sought escape showed he had not negative to arrest than none. The State need not charged, sought the crime escape but to relation to other offenses. arrest relation to other crimes. If above, . The bill further showed that noted does not show that he was Howard, his, any one Lon enemy or under indictment for other making all of com- kind character
plaints against him to causing him State, supra, In Roberts arrested, poor un- that he was a man appear to proc- failure and efforts to avoid ” opinion able make bond . . . The ess as a defendant witness in anoth- further states: corpus er man’s case was admitted habeas
“If, however, states, appel- as evidence of as the bill the defendant’s sought lant trial perjury. had not arrest for Roberts did fail to appear involved, perjury the crime for his here can see no trial and did we not jump good purpose bond and this reversed- his convic- useful Court be served appear tion because failure showing respect that in to other crimes at the ” sought he other man’s trial was not arrest. page perjury Roberts’ trial. appears opinion from the that Damron argues also was not fleeing, from for the po evidence of his transfer to the Garland upon tried, which was lice constituted evidence of an extraneous charges. At the time of his offense. There no before *5 flight, Damron was free on bond in the jury concerning the the reason for the case for which he was tried and transfer. The of a transfer of was charges shown that there were other po appellant custody to the of the Garland pending against him. In the case at bar of lice is not evidence of an extraneous the record does not appellant show that the Moreover, fense. of and was on bond when escaped fled, he and and is admissible such evi it does not show that there of another dence show the commission him; rather, pending against the State, supra; Thames offense. Jackson record shows custody, was in and for no other offenses than the charged. ones is rehearing The motion for State’s granted, judgments the of reversal are set supra, Torrence v. the defend- aside, judgments and the are affirmed. ant was county in the court for arrested, theft of an automobile. He was
placed jail escaped in and later and fled. ROBERTS, Judge (dissenting). An indictment was then returned and majority, setting I dissent. The in aside Torrence was tried for the theft of the au- opinion appeal, original this Court’s on this tomobile as felony offense in district only holding have annonced a that is not court. This appeal Court on that the held Court, contrary prior rulings to the of this evidence of escape was admissi- is an as against reason well. ble. The Court then stated as dictum: appear majority the Since advance “Had he placed been arrested and in affirmance, theories ex- two for without jail in that county for some other of- other, pressly relying upon the I will one or fense not connected with this transac- them discuss both. tion, position would have been main- tainable and should have been sustained.” majority first state that the record The page S.W. at appellant in in this case reveals that appellant The the instant case custody only' instant offenses. the custody while in with connection the This is not reveals record correct. same offenses and the same indictments in Dallas arrest under trial; which he record, But, was on the re- instant it also the offenses.
g75 the holding of case in this area. transferred to the custo- veals he was case, merely supra, is that evidence investiga- dy officers’ of Garland be relevant order to major- of the tion another Unless of simple sensible This is hereby a criminal law admissible. ity have announced anyone, let alone the members of “con- rule which of doctrine “relation-back” Court, be able to understand. of this should custody”, comprehend structive I cannot evi- hold appel- But, now that such seriously majority assert that they can how po- presumed Dallas dence will be relevant was still in the of lant lice, the burden then the same time he was custo- shifts Perhaps, by affirmatively dy police. to show of Garland defendant directly reasoning, of he was two magic twisted places and further show at once ? some other transaction that it is connected with the offense simple appel- This fact—that added) (Emphasis trial.” had lant been transferred escaped majority great spend I ex- will not deal of time —seems reason, State, su- plaining in this case. For their at- the fact that Damron v. away pra, tempts distinguish ruling authority amazing cases cited as for this per- proposition, State must nothing this fail. contains which a reasonably son with English familiar majority argue case, un language as advancing would conceive like Damron v. position it is the assertion. Unless (1910) Torrence v. majority that it now an affirmative State, 85 S.W. 957 defense to of- challenge (1919), bond, evidence, they fered cannot thus shift formally charged only instant offering party, burden from the fenses, and was for the in *6 my impression the accused.1 was It course, presence-or stant offenses. Of under the this law of State announced irrelevant, absence bond since we State, supra, Hicks v. hold that forfeiture of bond be used must show that its evidence of flight. to show Guajardo State, See 378 reasonably 853 (Tex.Cr.App. pres 1964). The trial. Obviously, longer this is no true. ence or absence of formal offense in Hereafter, nothing, longer means since we need no concern we that flight hold need not be motivated ourselves extraneous charge. trial, a formal to- offenses introduced since after day (1917) the burden shifts to the accused Israel v. affirmatively show their irrelevance. S. noted, potential W.2d un- theory application concept As this there was ease considerably but a limited and will no doubt single here is sim ply not shown burden which we have heretofore record. placed upon prose- in a State criminal is, however, theory second tion. majority which important is the most the most dangerous. The majority recog-
nize Hicks v. supra, as the ruling ONION, joins in J.,P. this dissent. majority I note that merely proof beyond doubt, not set out reasonable degree irrelevancy proof preponderance? doubt, No will be shown. Does the explained have the accused burden cases. later