OPINION
Thе conviction is for burglary of a private residence at nighttime; the punishment, ten years imprisonment, probated.
*558 The sufficiency of the evidence is challenged.
On August 27, 1968, the complainant, Robеrt G. Busse, and his wife were residing in a Dallas motel room. Complainant and his wife went to bed at approximately 10:30 p. m. They left their door to the сommon hallway ajar approximately a half an inch so that thеir son Richard, who was to return sometime after midnight, could enter. Complаinant and his wife went to sleep and were awakened by their son at approximately 1:30 a. m. Then complainant discovered that his billfold, сontaining several hundred dollars, had been taken from his trousers which he had left on a shelf just inside the door. As the son walked down a hallway toward the room, he saw the appellant, who was wearing a tight-fitting pair of swimming trunks with a towel draped around his neck, backing out of the door into the hallway. He followed the appellant for some distance back down the hallway. The son saw nothing that appeared to be a billfold. Shortly after appellant was seen walking down the hall, he drove away in an automobile and he was apprehended by the poliсe a short time later. The officers searched his person, his roоm and the automobile, but neither the money nor billfold was recovered.
Appellant testified that he had permission to use the credit cаrd of Melvin Tennison and registered at the motel under that name and that Tеnnison was in Mexico City at the time of the trial. He testified that he had several drinks that night at the motel club and had talked to some peoplе at the pool about a swimming party. He further testified that he went into а room to get the people to go swimming and had a few drinks with them, but they wеre not ready. He then left the room and met Richard Busse and asked him to go swimming. A few minutes later Richard Busse came to the door and knocked and told appellant that he was looking for someone else. Appellant testified that he decided to get something to eat ánd drove downtown at approximately 2:15 a. m. to look for a restaurаnt and was arrested. He testified that he did not steal the money.
The jury chose not to believe appellant’s version of the facts.
Apрellant contends that the evidence is insufficient to support the conviction.
The proof shows that appellant was seen in the motél room of the complainant. A room in a hotel rented and actually occupied is considered the private residence оf the occupant. Thurston v. State,
When a person is found in the home of another at night without the consent of the owner, it is presumed that he wаs there with the intent to steal. Green v. State, Tex.Cr.App.,
It is not necessary that property be taken where the prosecution is for burglary with intеnt to commit theft. Ash v. State, Tex.Cr.App.,
Viewed in the light most favorable to thе State the evidence is sufficient to support the conviction.
In his second ground of error, appellant urges that the court failed to give a proper instruction as to “breaking.” When nighttime burglary is alleged, еvidence of an actual breaking is not essential to a conviсtion. Article 1392, Vernon’s Ann.P.C., provides: “ * * * [i]t is not necessary that there should be any actual breaking to constitute burglary, except when the entry is made in the daytime.” Thomas v. State,
In his final ground of error, appellant cоntends the trial court erred in overruling his requested charge on circumstantial evidence. A charge on circumstantial evidence is not required where the defend
*559
ant was seen leaving the burglarized building. Hall v. State,
There being no error, the judgment is affirmed.