Phelps v. State
730 S.W.2d 198
Tex. App.
1987
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*2 ESQUIVEL, Before BUTTS and most favorable to verdict to determine DIAL, JJ. any rational trier of could whether fact

have found the essential flight elements of the While alone support will not verdict, beyond guilty crime flight a reasonable evidence of doubt. Jackson from the scene of a crime is a Virginia, circumstance from U.S. 99 S.Ct. which an inference of may be (1979); drawn. 61 L.Ed.2d 560 Ellis v. *3 State, (Tex. Valdez v. 623 S.W.2d 321 (Tex.Crim.App.1986), cit (on Crim.App.1981) rehearing). motion for State, ing (Tex. Garrett v. 682 S.W.2d 301 case, appellant this the present was at Crim.App.1984); State, McGoldrick v. crime; the scene of the there was evidence (Tex.Crim.App.1985). S.W.2d 573 he drove the car and fled the scene with his companions. The fact-finder could consid Participation in a criminal enter burglary er: the appel occurred while the prise may be inferred from the circum station; lant’s automobile was at the the State, stances. Freeman v. 654 S.W.2d green tee-shirt, Markham, black man in a (Tex.Crim.App.1983). In determin only was the one of the three who left the ing whether an participating accused was got it; only car and back a few minutes offense, party as a to the may the court elapsed from the complainant time the before, look to events during, and after the purse missed her until the three defendants commission of the offense. Medellin v. apprehended; were purse the in appel was State, 617 S.W.2d 231 (Tex.Crim.App. car; lant’s proximity appellant the close of 1981). presence Mere at the scene will not purse; to the none of the three defendants however, render party; one a it is a circum any explanation offered when arrested as tending prove stance to person that a is a to purse how the came to appel be party, facts, and may taken with other be car; (codefendant) lant’s did not sufficient to show that the accused was a testify only responsible that he was for the participant. Id. seat; purse flight on the car from the The owner of the vehicle stated she left by appellant. scene in the car driven purse her on the seat of her automobile appellant Neither nor his codefendants when she pay gasoline went inside to for testified at his trial. Nor did the evidence gone and was about five minutes. Her presented which was create a reasonable purse missing return, was upon her hypothesis other ap- than the of the reported she it police. to the An officer pellant party as a to the offense. arrived giving and she was information to Markham v. supra, was deter- him when he received a radio her call that mined without considera- purse had been recovered. application tion of of parties, the law of occupants The three of the car under charged jury was also in that theft; charged Therefore, surveillance were not with case. that decision cannot be charge dispositive was of this majori- a vehicle. case because the (Vernon ty apply parties. TEX.PENAL failed to the law of CODE ANN. 30.04 § person, The elements are that a It can be concluded that under the owner, without the effective consent of the present circumstances of the jury case the any part breaks or enters of a vehicle with could and did find the essential elements of felony intent to commit a or theft. beyond the crime a reasonable doubt and appellant, according to pur a common Officer Morris testified only that he saw pose, acted with the others as a to get one of the three men out of their car at Appellant’s the offense. first two station; man, that one was a black challenging error of the evi wearing green he was a tee-shirt. When dence are overruled. arrested, codefendant Markham was wear- ing green tee-shirt. The other two occu- The final is that error resulted pants Appellant never left the car. was right when he was denied the to have driver, and a third codefendant codefendant, was the Markham, testify as a defense passenger. back seat The contents of the presence witness. Out of the of the purse were on the seat. Markham claimed his Fifth Amendment privilege against appellant was self-incrimination. The State testified that seen tak- permit complainant’s trial him to ing pink purse court refused out of her witness, automobile, called as a and trial resumed. physi- nor that was in Markham had not then been tried purse. of the He con- possession cal offense. A defendant not as a call showing presence tends that at witness a codefendant who indicated he has is not to sustain a the scene sufficient against will privilege assert his self-incrimi conviction; prior that none of the events nation under Fifth Amendment appellant’s burglary affirmatively show United States’ Constitution. Whitmore preparation participation for or in the (Tex.Crim.App. crime; “flight” appellant’s as de- *4 1978) (citations omitted). error is No calm, by Morris was if scribed Detective as shown, point is and the third of error over nothing happened. unusual had ruled. appellant’s The contends that unex State is affirmed. possession plained recently prop of stolen erty support is alone sufficient a so convic

ESQUIVEL, Justice, dissenting. burglary property tion the in the for I agree can not with the of holding the Appellant was stolen. maintains that since majority in this case. there were three men in the car he was driving, pink purse and the was discovered error, In point appellant his first of con- seat, every hypothe in the back reasonable denying tends that the trial court erred in guilt sis other than his not has been exclud his motion for an instructed verdict be- by ed. The exact contention the State was prove cause the evidence State’s failed to rejected by a majority panel of this Court appellant’s commission of the offense be- Markham, appeal by in Bobby appel the yond a reasonable doubt. In second co-defendant, “green in lant’s the man the error, of he contends that the evi- panel shirt.” The aof of this dence is support judg- insufficient to the rejected Court the State’s contention of ment of conviction. Since grounds both possession of recently property stolen and challenge the of I the evidence the See v. reversed conviction. together. will discuss them State, 93, (Tex.App. 714 S.W.2d 96 — San Appellant presented no in his 1986, pet.). adopt Antonio no I the reason only defense. The evidence before us is Markham, ing in reject of this Court and presented by the evidence in its State the State’s contention. majority, case-in-chief. The under our An inference or a presumption of a scope review, of has correctly set that out guilt burglary defendant’s or a theft evidence in light most to favorable sufficient to sustain conviction a v. Virginia, Jackson verdict. 443 U.S. possession aby arise from defendant of 2781, 2789, 99 S.Ct. 560 L.Ed.2d in property stolen or a taken recent bur- State, (1979); Houston v. However, prosecution glary. in the 456 (Tex.Crim.App.1984). a or burglary, either theft to warrant Appellant argues that the to State failed presumption such an inference or prove either or direct evi- circumstantial possession from circumstances dence he criminally responsible that was alone, possession personal, such must be burglary complain- to the recent, unexplained, must be must Appellant points ant’s vehicle. out that the must involve a distinct conscious only probative State’s evidence came from right or property by assertion placed appellant detective Morris who at defendant. occurred, scene where (Tex. Jackson S.W.2d Lockamey ap- from placed Detective who Rodriguez citing Crim.App.1983), pellant in the driver’s seat of Buick (Tex.Crim.App.1977). complainant’s purse where the and driver’s plain Further, appel- license were view. instant case the evidence is insuf- lant prove any pur- out that no for the witnesses ficient to had pose design party, or in common with

who without the effective consent of com

plainant, entry made into her car with the

intent to commit theft and took her

purse. showing There is no in the record prior appellant acting to the offense promote

with intent or assist in the offense, solicited,

commission of the en directed,

couraged, attempted aided or principal

aid the in commission of the of Appellant’s “flight”

fense. from the imme subsequent

diate scene and assistance

driving principal vicinity, out of the if all,

chargable “hindering apprehen at was prosecution.”

sion or TEX.PENAL CODE (Vernon 1974).

ANN. 38.05 I would §

therefore hold that the evidence was insuf

ficient show was a

offense of burglary. See Strelec (Tex.App 619-20 . —Hous d). I

ton would 1983, pet. ref [14th Dist.]

uphold of error.

According, respectfully I dissent. I judgment

would reverse the of conviction

and remand this cause to the trial court for entry acquittal. of a GARCIA, Appellant,

Roland Texas, Appellee.

The STATE of

No. 04-86-00072-CR. Texas, Appeals

Court of

San Antonio.

May 1987.