Nickerson v. State , 792 S.W.2d 212 ( 1990 )

OPINION

SAM BASS, Justice.

Appellant, Nickerson, appeals his conviction of burglary of a building. The jury assessed punishment at 50 years and a $5,000 fine.

We reverse and order an acquittal.

About 5:00 a.m., on November 28, 1987, David Yates saw a dark-colored car with a light top parked at a Radio Shack in Pear-land. Yates pulled into the Radio Shack parking lot when he saw the person in the car duck. Yates then saw two male figures running out of the Radio Shack. The vehicle left the lot, and Yates could not tell what race the males were or what they were wearing. He followed the car, but lost it, and returned to the store and met Officers Uresti and Slowik of the Pearland Police Department. The officers had responded to a dispatch based on an audible alarm switched to the police station. Yates gave them a description of the vehicle and its last known location. Uresti said Yates described the vehicle as a dark brown or blue Chevy, Pontiac or Oldsmobile with a light top.

After receiving Yates’s description, Officer Slowik drove his patrol car in the direction Yates had indicated, and Uresti took more information from Yates. Uresti heard over the police radio that Slowik had spotted a vehicle fitting the description of the vehicle, and joined in the chase. Sergeant Webb heard the same communication and headed toward the intersection of Broadway and Barry Rose, where he saw a dark-colored vehicle with a white landau top, southbound on Barry Rose. He pulled alongside the vehicle, shined a light inside it, and saw two black males. Webb noticed one of the passenger's upper teeth were gold. Uresti and Webb saw two black males exit the vehicle in opposite directions while it was still running. They described the passenger as wearing a black, three-quarter-length coat and levis. The vehicle collided with a garage.

After four hours of searching for the suspects, Webb returned to the area of the garage, and found the passenger standing on the road. His shoes were wet; and he was wearing the black leather coat, with mud and water stains. Webb asked his name, and appellant said “Victor Webb.” At trial, Webb identified appellant as the passenger in the vehicle. After the Cutlass collided with the garage, Webb looked inside the car and saw three VCR’s and a small portable television with a radio in it.

Lieutenant Chapman responded to the burglary call at the store. He said the shelves looked like someone had pulled something off them, leaving wires hanging out. He identified State’s exhibit 9, a photograph, as depicting the Radio Shack shelves with the wires hanging down, and stated that the equipment on the floor was a Realistic VCR. Chapman went to the Cutlass/garage collision and examined the car. He saw three or four Realistic VCR’s and a Realistic television on the car’s rear floorboard. Chapman looked at exhibit 5, a photograph, saying it depicted the same electronic equipment he saw in the car. The photo showed four VCR’s and a television set.

Robert Feagin, the regional loss prevention manager of Radio Shack, testified he did not personally see the equipment that was stolen, and the serial numbers of the equipment were not written down, but he was “fairly certain” some electronic equipment was taken from the store. Feagin testified he knew the equipment was stolen by reviewing the loss and damage report filed by the store manager. When Feagin attempted to describe the equipment, by referring to the loss and damage report, appellant objected that Feagin’s testimony was hearsay. The court overruled the objection, even though the State had not proved the business record exception, nor any other exception to the hearsay rule. Tex.R.Crim.Evid. 801. Feagin described the stolen equipment as one four-and-a-half-inch television with stereo, and four VCR’s. The damage report was Feagin’s sole knowledge of what was stolen. Feag-in testified that a photograph of the items removed from the 1985 Cutlass (exhibit five) depicted the same type of items.

Appellant, in his first point of error, complains it was error for the trial court to allow Feagin to testify to the contents of the loss and damage report. The State concedes that the admission of such testimony was error, but contends it was harmless. We disagree that the error was harmless because Feagin’s hearsay was the only evidence of what was stolen. Appellant was convicted not of burglary with intent to commit theft, but of burglary and committing and attempting to commit theft. Tex.Penal Code Ann. § 30.02(a)(3) (Vernon 1989). Thus, the jury charge required the State to prove that a television set and four VCR’s were stolen. As the only evidence of that fact, Feagin’s testimony was plainly harmful. Tex.R.App.P. 81(b)(2).

Appellant’s first point of error is sustained.

In his second point of error, appellant complains that the evidence was insufficient to prove beyond a reasonable doubt that appellant “attempted to commit and committed theft.” Appellant, in his third point of error, alleges that the circumstantial evidence is insufficient to establish the guilt of the appellant. Appellant points out that there was no evidence that the identical equipment recovered from the Cutlass was in the Radio Shack store before the burglary and removed as part of the burglary. Appellant relies on York v. State, 511 S.W.2d 517, 518 (Tex.Crim.App.1974), for the proposition that “When possession of recently stolen property is relied upon for conviction, it must be shown that the property is the identical property taken from the theft scene.”

Upon review, the sufficiency of the evidence must be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

In reviewing the record, we find the brand of audio and video equipment Radio Shack sells is Realistic. Feagin was “fairly certain” some electronic equipment was taken from the Pearland store. Feagin said that State’s exhibit five, a photo of four VCR’s and a television, depicted products sold by Radio Shack. State’s exhibit nine, a photo, depicted the way the shelves looked after the burglary. This evidence, while very persuasive, does not meet the York test of showing that the items found in the appellant’s possession were the identical items taken in the theft incident.

We further find, upon a review of the record, that because there was no identification of the persons seen within the store or within the automobile by the witness, Yates, and because a time lapse occurred between the time that Yates lost the vehicle, and the time Officer Slowik located the vehicle, the circumstantial evidence is insufficient to afford a conviction. The time lapse would have been of sufficient length to permit someone to have exited the vehicle, or for someone to have entered the vehicle. Further, the evidence shows that Yates saw three people in the car, while only two were in it when it was stopped. Therefore, because of the trial error, and the insufficiency of circumstantial evidence, we sustain the appellant’s second and third points of error. See York, 511 S.W.2d at 518; Michalenko v. State, 658 S.W.2d 760, 763-64 (Tex.App.—Austin 1983), aff'd, per curiam, 678 S.W.2d 75, 76 (Tex.Crim.App.1984).

Appellant complains, in his fourth point of error, that the trial court erred in allowing into evidence a three-quarter-length coat, not previously disclosed to appellant as ordered by the court. The thrust of this complaint is that the introduction of the coat came as a surprise to appellant, denying him the opportunity to question its admissibility prior to trial and generally violating appellant’s right to due process. Because of our ruling above, this complaint is now moot.

We reverse the judgment and order the trial court to enter an order of acquittal.