Spencer v. State , 628 S.W.2d 220 ( 1982 )

OPINION

BISSETT, Justice.

This is an appeal from a conviction for aggravated robbery. Following a jury trial, punishment was assessed at twenty years confinement in the Texas Department of Correction.

The conviction is based solely on circumstantial evidence. The trial court charged the jury on circumstantial evidence. The defendant did not testify, nor did he present any evidence. The single ground of error is that the evidence is insufficient to sustain the conviction.

At approximately 10:30 p. m. on May 22, 1979, Juan Antonio Menchaca returned to his home at 514 12th Street South, Texas City, Texas, from a local convenience store carrying two bags of groceries. As he prepared to enter the front door of his home, he was attacked from behind, pushed off the front porch, thrown to the ground, and a pistol was “put” to his head. The assailant straddled him, took his wallet from him, fired a shot that hit no one, and then fled the scene of the attack on foot.

It was dark when Menchaca was robbed. The porch light “was turned off that night.” There were no lights on in any of the “other houses around there.” The location of the nearest street light was not established.

Menchaca, the victim of the robbery, testified when the pistol was put to his head, he made an attempt to look towards the right, and “saw a black hand and a chrome pistol.” When Menchaca attempted to look at his assailant’s face, the latter “hit me in the face.” When Menchaca was asked on direct examination what was taken from him by “the man,” he said:

“My wallet. That’s all.”

In response to the question “What was in your wallet?” he stated:

“Less than ten dollars, and (his) immigration papers.”

Following the attack and robbery, Men-chaca remained “face down” on the ground for a very short time, got up, and saw his attacker “running” along the street. He said that “the man” was about “half-a-block” away, was dressed in “dark clothes,” and had a “dark” object in his hands. Men-chaca could not identify the object.

Shortly after the incident, Menchaca, at the request of the police, went to the police station where the police “showed him a man.” At the trial, Menchaca was asked: “And was that man this defendant?” He replied:

“He is the same height, same weight, and similar. He is the same color.”

The record also contains the following questions propounded to Menchaca and his answers thereto:

“Q. Do you know this defendant here today, Mr. Larry Don Spencer?

A. Yes, because I had seen him at the police station.

Q. This was after the robbery. Is that correct?

A. Yes, after the robbery, but at the police station.

Q. Had you ever seen him before that time?

A. No.”

***** *

“Q. You cannot say definitely that this is the man who attacked you?

A. No.”

******

“Q. Was any of your property returned to you later?

A. Just the papers, but not the money.

Q. Was your wallet returned to you?

A. No.”

A pistol was exhibited to Menchaca at the police station. That pistol was introduced in evidence at the trial. Menchaca was asked at the trial, “Did the gun look like the gun put to your head?” He replied that the only thing “he could identify was the chrome,” but that he did not know “if that was the exact gun.”

About three blocks from the scene of the robbery, and at about the same time of the robbery, Mr. Stanley L. Wade, a police officer who was on routine automobile patrol, saw the defendant, “with the beams of my headlights on bright,” run from between two houses. The officer testified that the defendant, who was carrying his shirt, appeared to “dip and roll out his shirt” (or lay it on the ground) after spotting the police car. He did not see anything “fall” out of the shirt. The defendant then picked up his shirt, put it on, and walked toward the police car, which was parked about fifty or sixty feet away. The officer and defendant stepped around to the rear of the car where the officer asked the defendant his name, where he was going, and where he was coming from. During this questioning, the defendant tried to hide his hands, which had a white substance on them. The officer identified the substance as “paint, dry paint that you get from a house after it has been dried.” He also noticed the same substance on the defendant’s pants. At that time, another police unit came up, and Officer Wade “went over and checked the two houses he (the defendant) had come between to make sure there was no point of entry.” He found nothing.

The defendant then accused the officers of harassing him. He became “obnoxious” and was subsequently arrested by Officer Wade for disorderly conduct.

While transporting the defendant to the police station, Officer Wade learned over the radio that a robbery had just occurred in the general vicinity of the arrest. He took Spencer to the police station for booking. He then returned to the scene of the arrest where he found, at the spot where defendant had “dropped” his shirt, a chrome-plated pistol, and “some papers.”

Officer Wade examined the pistol. It “had one spent round under the hammer,” which indicated that “it had been fired.” Concerning the “papers,” which were found at the site where the pistol was discovered, Officer Wade said that he kept them in his custody “until they went through the Xerox, and then these copies were placed in the evidence locker.” The originals were delivered to Menchaca. In response to a suggestion by counsel for the State that he tell the jury what type of papers he “found at the location where the gun was found,” Officer Wade stated:

“The papers that I picked up, there was a letter from the Crystal City Police Department stating something about residency ... there were also three or four payroll deductions, or tabs on there from Grumman Allied, pay slips ... there was a card with fingerprints on it — or thumbprints on it. There was also this notice of entry. There were a couple of other sheets. I don’t recall what they were . .. there was a hospital identification card, and just a paper identification card, all with Juan Menchaca’s name on them.”

The originals of: 1) Three payroll deduction slips from Grumman Allied Industries, Inc.; 2) a hospital identification card, issued to one “Juan Menchaca” and signed by one “Juan Menchaca”; and 3) a United States Identification Card, dated April 3, 1979, issued to one Juan Antonio Menchaca, of 729 Avenue 14, Texas City, Texas, and signed by one “Juan Antonio Menchaca,” were introduced into evidence without objection. Xerox copies were then substituted for such originals, and the originals were “returned” to Menchaca. The other “papers” which Officer Wade “found” were not introduced into evidence. Menchaca was not asked anything about the “papers” which Officer Wade “found,” although he was called as a witness by the State and did testify.

The payroll deduction slips do not bear the name of Menchaca, despite the arresting officer’s testimony that “all these papers were — had Mr. Menchaca’s name on them.” Neither the wallet nor the money therein contained were ever found or recovered. No paper currency (only change) was found on defendant when he was arrested.

The pistol was tested for prints, but only smudges were found; so, there is no evidence that the defendant ever touched the gun. The white substance found on defendant’s hands and pants was never chemically tested, though the arresting officer did say that the white paint on Menchaca’s house, along with other houses in the area, was “chalky and would rub off.”

The test for reviewing circumstantial evidence cases on appeal is whether there was evidence from which the jurors, having been advised of the restrictions the law places upon them in condemning one upon circumstantial evidence, might reasonably conclude that every reasonable hypothesis other than the defendant’s guilt was excluded. Flores v. State, 551 S.W.2d 364 (Tex.Cr.App.1977). In circumstantial evidence cases, the appellate court will view the evidence in the light of the presumption that the accused is innocent. Flores v. State, supra. All available avenues or areas which are likely to reveal the truth should be explored. McKinley v. State, 282 S.W. 600 (Tex.Cr.App.1926). “Proof amounting to only a strong suspicion or merely probability is not sufficient.” Robinson v. State, 570 S.W.2d 906 (Tex.Cr.App. 1978). To warrant a conviction on circumstantial evidence, there must be proof to a degree of certainty greater than probability or a strong suspicion tending to establish that the defendant was the person who committed the crime, or was a participant therein; there must be direct evidence which establishes the basic facts beyond a reasonable doubt. Fraser v. State, 141 Tex.Cr.R. 152, 147 S.W.2d 780 (1941). Every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977).

Mere presence in the vicinity of the crime, even when coupled with flight, is not alone sufficient to sustain a conviction. Moore v. State, 532 S.W.2d 333 (Tex.Crim.App.1976).

This Court has a duty of insuring that no one is convicted of a crime except upon proof beyond a reasonable doubt, and in a circumstantial evidence case, upon proof excluding all other reasonable hypotheses except defendant’s guilt. Bryant v. State, 574 S.W.2d 109 (Tex.Cr.App.1978). Easley v. State, 529 S.W.2d 522 (Tex.Cr.App.1975).

The question for this Court to decide is whether the defendant’s presence in the general vicinity of the robbery at that particular time, combined with the recovery of the pistol, the aforesaid check stubs, the hospital card and the identification card is sufficient to link the defendant with the robbery. We answer that question in the negative.

In summary, the items found by Officer Wade in the area where he first saw the defendant were never linked to defendant. The site was about three blocks away from the place where the robbery occurred, which places those items in the general vicinity of the place where the robbery was committed, not, however, in the immediate vicinity thereof. Menchaca was never queried (at the trial) with reference to the “papers.” Specifically, he was not asked 1) if any of the “papers” found by Officer Wade belonged to him; 2) if those papers were in his wallet at the time the robber took the wallet from him; or 3) if the signatures on the hospital card or on the identification card were his signatures. The “papers” were not shown to him at the trial. The identification card shows that it was issued by a person whose initials are “R. E.”; it has a picture of a person on the front and fingerprints of the left and right index fingers on the back. Menchaca testified that he lived at “514 12th Street South, Texas City,” while the identification card recites a residence address of “729 Avenue 14, Texas City.” The identification card was issued on April 3,1979, and the robbery took place on May 22, 1979, some seven weeks later. There is no evidence that Menchaca ever lived at 729 Ayenue 14, Texas City.

The pistol and the “papers” were not discovered when Officer Wade first inspected the area where the defendant dropped his shirt. They were discovered “between 21 and 27 minutes” after he first saw the defendant, when he went back to the scene of the arrest and made another search of the area.

The pistol was not positively identified as being the same weapon used in committing the robbery, even though they were “alike.” Menchaca was unable to identify the defendant as his assailant. There is no evidence that Menchaca’s attacker came in contact with any part of the outside of Menchaca’s house before, during or after the robbery. The white paint on the defendant’s hands and pants, if it was white paint and if it got on his hands and pants as a result of coming in contact with the outside of a house, could have come from any one of a number of houses in the vicinity of the robbery.

There is no evidence that the defendant was ever in possession of the wallet or of the money or the “immigration papers” contained in the wallet. There is no evidence which shows that the identification card was issued by the U. S. immigration authorities. There is no evidence which will support an inference that any of the “papers” found by Officer Wade are the same papers which Menchaca said were his “immigration papers.”

There is no evidence that Menchaca was ever employed by Grumman Allied Industries, Inc., or that the payroll slips found by Officer Wade belonged to Menchaca. There is no evidence that the signatures on the hospital card and the identification card were the signatures of Menchaca.

The cases of Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975), Bonner v. State, 492 S.W.2d 498 (Tex.Cr.App.1973), Batiste v. State, 464 S.W.2d 149 (Tex.Cr.App.1971), and Edmonds v. State, 407 S.W.2d 783 (Tex.Cr.App.1966), not being in point, do not control the disposition of this case. They are all distinguishable on the facts from those presented in this appeal. The proof in all of those cases conclusively showed that the defendant was in unquestioned “unexplained possession” of the very property which was taken from the victim at the time of his arrest, which occurred shortly after the theft or robbery took place, as the case may be. That is not the case here. The element of “unexplained possession” by the defendant of property taken from Menchaca during the robbery is lacking. We are not concerned with mere possibilities or probabilities in this appeal; we are concerned with evidence and inferences which may be lawfully drawn from evidence. We find nothing in this record which establishes by evidence, or proper inference, that the defendant, at any time, was in “unexplained possession” of Mencha-ca’s wallet, any money contained therein, or the “immigration papers.”

This case is controlled by the rule announced in King v. State, 396 S.W.2d 409 (Tex.Cr.App.1965), and followed in Schershel v. State, 575 S.W.2d 548 (Tex.Crim.App.1979). The Court, in Schershel, at page 551, said:

“Where circumstantial evidence relied on by the prosecution is obviously weak and where the record on appeal affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but also that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, the appellate court will treat the case as one showing reasonable doubt of the sufficiency of the evidence to support the conviction. King v. State, Tex.Cr.App., 396 S.W.2d 409; 24 Tex.Jur.2d 427, Evidence, Section 745.”

That rule is especially significant and applicable in the case at bar. Additional testimony could have been elicited from Men-chaca which could have shed light on the “papers.” As already stated, Menchaca testified for the State. He could have been asked if the “papers,” or any of them, were in his wallet at the time of the robbery, or taken from his person by the robber. He was not asked any question which would have cleared up the matter and might have proved unquestioned unexplained possession of the “papers” by the defendant. There is nothing in the record which satisfactorily accounts for the State’s failure to ask Men-chaca the obvious questions. We, therefore, must treat this case as one which shows reasonable doubt with respect to the sufficiency of the evidence to support the conviction.

In order to sustain the conviction in this case, we would be compelled to pile an inference upon an inference. This, we cannot do. Williamson v. State, 156 Tex.Cr.R. 520, 244 S.W.2d 202 (1952).

The evidence does not exclude the reasonable hypothesis that the defendant’s proximity to the scene of the crime was mere coincidence. The evidence does not exclude all other reasonable hypotheses except defendant’s guilt. The evidence presented by the State amounts to nothing more than a strong suspicion or probability that the defendant committed the crime for which he was convicted. We hold that the evidence is insufficient to sustain the conviction in this case. The defendant’s ground of error is sustained.

No further prosecution is permissible. Burks v. U. S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151,57 L.Ed.2d 15 (1978); Robinson v. State, 570 S.W.2d 906 (Tex.Crim.App.1978).

The judgment of the trial court is REVERSED and REFORMED to reflect an acquittal.