*1 Finally, contends denying her the
the trial court erred right file an amended for new No timely
trial. motion was filed. No er ror is shown. is affirmed. Raymond RANDOLPH, Appellant,
Albert Texas, Appellee. The STATE of No. 46978. Appeals Court of Criminal of Texas. Nicholas, E. Sinton William J. Joe Feb. Christi, appellant. Corpus Alsup, Buddy Vollers, Atty., State’s D. Jim Austin,
Stevens, Atty., Asst. State’s the State.
OPINION MOTION ON APPELLANT’S FOR REHEARING ROBERTS, Judge. appellant was convicted bur- punishment
glary. jury assessed his imprisonment. years’ at two re- appellant’s grounds
All error sufficiency of the evidence. late verdict, the light jury’s Viewed following: evidence shows the L. Shel- 26, 1970, he and burne testified June in a shed placed his “hands” their farm the offense occurred. where re-He door to the shed was closed. morning find following turned on the pushed to the door shed missing. B. open C. and the saddles Owen, Patricio sheriff deputy the shed County, testified that examined have been door tes- pried open. Both Shelburne *2 846 stop building on
tified that another
the same
continued down the street. He
number of
turned
farm had been entered and a
around to
them
follow
and observed
them
tools had been taken therefrom.
make a
and
u-turn
come back to
ward
u-turn,
Ranger
him. The
made a
year”
Shelburne testified that “almost a
and
them, observing
followed
speed
them
appellant
after the
his
offense the
visited at
up and make
at
two turns
intersections be
home, told him
he had possession
that
of
fore he caught
stopped
and
the truck.
them,
the
pawned
that he had
that There
testimony
was no
that
Ranger
the
he wanted to know how much Shelburne
ever used a
lights
siren
red
in
order to
had
(“
lost
.
it
take
.
. what would
attention,
call
including
the
of
occu
my
”),
kind of offset
.
.
.
and
loss
pants of
truck,
the
to the fact that he was
that he wanted to
with Shelburne
work
State,
Compare
giving chase.
Talbert v.
“
any way possible
try
.
.
.in
Navy
State,
and
(Tex.
v.
alone. session not personal. to be shown record brother, shows that It was also shown that one of the saddles alone, acting0 previously had carried a on which en- pawned and Addi saddles. graved that this name “Pat” and tionally, one of marked had been used “Mike” to hide Appellant’s with Pat’s name. statement to (a Shelburne) deceased Mr. son which after Shelburne the saddles were was made had been tooled in leather of the sad- unredeemed, pawned a second time were dle. admittedly knowing appellant, so that while guilt location, other their did not have evidence ambiguous flight. some rather evidence of them. The fact that entered 1, Rodriguez, Ranger, testi February Arturo a Texas shop his brother 1971, pawned fied had two in his the saddles name when Rodriguez appellant’s arrest. produce warrants for not identifica brother could Olympia value, tion, stationed himself in front of has probative little view of just Shop. previously had closed the fact that his had brother driving manager away pawned and redeemed saddles and Rodriguez appellant and an observed the them. We are name on one of opinion truck. The pick-up other drive that this is not sufficient evidence was a Clark. driver man named Vincent to show that the and his brother not Ranger acting together exercising testified that the men did joint original have not been favored with a brief for the State either on or on We submission reahearing. opinion are of the property. We control was not exclude this case such as to Compare Beard 458 S.W.2d hypothesis than every reasonable (Tex.Cr.App.1970). committed this offense. certainly Appellant’s “possession” was stated, For the reasons recent, since saddles were *3 aside, appellant’s affirmance set is offense, and eight months after the some rehearing granted the is oc- appellant’s conversation Shelburne the is reversed and cause remanded. curred later. even unexplained. Appellant’s MORRISON, Judge (dissenting). testify at his conver- He did not trial and the light on sation with shed no Shelburne I dissent ato reversal this conviction. the pawning of saddles. holds majority the evidence appellant insufficient to connect the regard to a With distinct conscious the fol- record reflects the saddles, rights exercise of lowing incriminating facts: appellant shows at most only in his after pawned them name A) Appellant, accompanied by his broth- so. brother unable do er, Pat, plus some seven the months after burglary possessed (pawned) two saddles evi on A conviction circumstantial during stolen the burglary.1 sustained if the circum cannot be dence B) At the time the every possessed appellant proved do not exclude stances (pawned) these except saddles, a silver hypothesis that of there was reasonable plate “nailed” on the back of one of these amounting the accused. Proof guilt of Pat, saddles marked with the suspicion probability name under- a mere to a strong neath which was the into Mike tooled name is insufficient. See Flores guilt There attempt leather. had been an (Tex.Cr.App.1973) S.W.2d cut off Mike with knife.2 there and cases cited. 1. The time testimony: erty at saddles; statement: testimony for Pat. “Q A A Yes sir. A He Mr. Noe C. Q Q Q identification, appellant [*] than At the What was Yes, And did bert seen Do (some in majority opinion pawn shop pawn shop however, you Raymond Randolph? sir. him, simply being Oylmpia eight “The [*] you a customer a clerk know this had more control over and his brother Antonio, Morin, sir? 1971? see him so owner’s months after with the saddles. State occasion [*] attempted was unable at contains an at the store. defendant during pawn testimony Shop? agent [*] showed, by the Olympia Pat shop February you pawn here, month following indicates offense), [*] delivery produce owner’s At having them.” Pawn prop- this Al- hereinabove: testimony, on the (pawned) Although Mr. Noe C. A A Q A On A A “Q Q Q Q [*] That was in? Did he When did Yes, silver saddles, On the first of Yes, Yes, Yes, sir, sir. you ary. Incidentally, saddle the first sir. the saddles. recall sir. sir.” from that continuing there is no is clear [*] two did he ever participated [appellant] Morin, he there the time on 1971? saddles, on bring February? the back of it? [*] (sic) quoted at a later one of these saddles being direct the alterations were those saddles pawn and some ever bring any some kind [*] in footnote second, evidence that bring shop point alterations, possessed shotguns, [*] owner’s in Febru- in his in? of a any do identity away made this and from These alterations of burglary.3 sometime after the Ranger. discusses a Texas apparently disregards it. later, appel- C) and a half weeks Three feel, however, flight, that it constitutes lant, having showing burglary.4 guilt of fled pickup truck which passenger places different on sad- several Yes, A sir. leather, engraved tooled into the dle it had words anything on the Q Was Bending Champion.” plate? said “Pole silver B. saddles to Mr. C. Q You delivered the Yes, A sir. Deputy Sheriff? was that? Q What day February. 25th A On the A P-A-T. February? engraved Q On 25th of Q P-A-T Yes, sir. that saddle? the back you day was *4 that found them? Yes, Q What it A sir. February. name Albert Ran- of A It 19th Q And Pat was was the of dolph’s brother? year, Q That’s the same 1971? Yes, A sir. Yes, A sir.” this of Q And was 1971? Testimony Jr., Shelburne, Mr. L. of were, Yes, sir, A saddles the other two injured party: items were that.” before you “Q these How do know saddles? Testimony Krueger, of Glenn Texas Mr. bending Well, pole a A one of Ranger, Department them was of Safe- with Public championship by for 1966 was won some ty : a you looking contestants from our local area at Krueger, were “Q Mr. stolen people property? McAllen Rodeo. Most never re- only thing they alize, Yes, came A sir. — Valley McAllen, you it’s a—the Rio Grande Q Did see saddles two there? put Yes, sir, rodeo Rodeo Association this A I did. belonged my you to dead subsequently and the one a Q Did find or have report son and his name was on back from down two stolen saddles it, special County? it was a made saddle. here in San Patricio Yes, belonged your A Q sir. son And that had to who you bring previously passed away, Q Did from the those saddles is that cor- Oylmpia up back here? rect? day. A that Not on Yes, A sir. you Q Bút did? your property? Q And it was then Yes, A sir. Yes, sir, A this was one Q these the same two saddles that Were particular saddle the name had talking arewe about? attempted to be cut a off with Yes, engraved they A sir. knife and it was so that get they you it couldn’t off and then drilled Q did take them? Where plate put holes and a silver over Deputy Sheriff, A Turned them over to a top pretty name, and this was Charlie B. here Sinton. sentimental to us.” you . Q to Would describe these saddles jury? Ranger’s 4. The as follows: was One of these saddles a Vela made waiting “A I him there in front was saddle which means that it was made in pawn shop I him and when saw a it saddle Floresville and was tooled subject pickup, up in drive a another and on cantle of the saddle there they they as went saw me ahead plate Pat, a silver with name going Military Drive, off west on drove P-a-t, plate, written on but un- I turned went ahead and around and Mike, der up this time I come them could to M-i-k-e which was ‘tolled’ into that already they a turn made U cantle. the next intersection were com- Q tooled into the leather? jumped Was ing I ahead and back went leather, gave A Into the this name hidden chase and this time curb plate, they apparently under who the name Mike realized I was— underneath, (Appellant’s Attorney) and on the silver MR. : NICHOLAS object the name the other saddle was to statement as to what they may a tooled brown leather saddle have realized.
«49 plained. lacking year D) burglary About a after the element proof injured party is that the recent. admitted pos- elements of recent he had had these saddles. Three of four proved, having been there are in- session injured party if Appellant asked the E) criminating other than facts the in- anything they (he and there was burglary, with this to- connect jured help do the air party) could clear “to wit: the whole situation.” The Flight. A) it take wanted know “about what would to kind of offset loss.” Appellant’s incriminating B) conversa- party. tion the injured appel- Appellant’s wife testified that
F) mechanic, carpenter a did a lant was reason, C) had no busi- horses, no reason have not ride would ness, otherwise, personal possess or to have saddle. (coupled ap-
saddle the in- never mentioned to Appellant G) pellant possessed saddles). brother, Pat, name of jured party the saddles from his gotten the D) he had The alteration concealment any give ex- did not Appellant brother. identity (coupled one *5 saddles possession planation for his possession appellant’s with of this saddle at injured party. to the he talked time when such alterations were 5). thereon re- the State assumes that majority The possession to unexplained, upon recent lied State, 5, In v. Law Tex.Cr.R. S. to proceeds then guilt and appellant’s show 90, refusing recognize to appellant’s four elements of the three show requested charge possession, on recent element only lacking, are proof such Court held following: unex- possession being that proved position overlooks majority’s plained. “In this case state does not rely three, just not satisfies which (1) evidence upon that (posses- circumstance alone posses- one, recent elements of four sion), but shows that the animal is re- posses- other than and (2) sion brand, cently in appellant’s branded and to this sion, which connects the first time he to make an ex- seeks burglary. planation possession, his does not deny possession, deny not that he does testimony that owner’s animal, says claimed the he wants to and the saddles it, go if tell and and see he could see party’s injured it, admitting got his from whom he thus possession he had admitted ownership, possession, only claim of show sufficient is these claiming purchased it from that he had personal possession appellant’s by ap- someone. the authorities cited as- So and conscious a distinct (2) constituted pellant upon where the relied state re- rights. The sertion alone, unexplained, possession cent is clear acknowledged as guilt, point. are not in If recent (3) unex- show possession appellant’s right caught up happened, time tell what Just COURT: THE them.” officer. they They sped I did too supra. (2), 5. they Footnote See turned, a left turn made they intersection, made another one circumstance possession was then appellant’s guilt, case to show BROWN, Appellant, Ray Lonnie appellant’s support cited would the cases v. contention.” Texas, Appellee. The STATE State, 165 Tex.Cr.R. also Walden v.
See No. 47126. 354, Bouchillon v. 196, 305 S.W.2d 79, State, 554. S.W.2d 160 Tex.Cr.R. Appeals Court of Criminal of Texas. 27, Feb. rely not then does conviction alone, incrimi- but the additional possession evidence of along facts with
nating sustain sufficient are conviction. sustained on can
The conviction together theory appellant and Banks committed 661, 271 S.W.2d 160 Tex.Cr.R. depend did that the conviction we held sto- upon the defendant’s co-princi- upon a property, but rather len connection defendant’s pal’s co-principal. conviction on a the- supportable case at bar likewise principals, particularly ory brother, Pat’s connection property stolen.6 with the connection *6 State, Tex.Cr.App., 456 S. Grego charge on held that the it was W.2d include need not evidence circumstantial no oth- the defendant provision that charged offense person er committed defend- showed commis- others participated ant bar, In the case crime. of the sion circumstantial is sufficient bur- in the participated Pat. or without glary either with entirety is considered its The evidence jury’s verdict. support the sufficient for re- would overrule hearing.
DOUGLAS, in this dissent. J., joins principals points charge in the out no 6. There was acting alone in Banks v. Pat bar as there was case at prior charge supra. neces- would not Such theory having together uphold sary, however, done so. convic- Pat appellant in order to committing par- jointly theory Pat based on tion posses- burglary explain ticipated along this exclusive would sion Pat.