I respectfully dissent. In my judgment, the evidence is sufficient to sustain the conviction.
Appellant was convicted by a jury for the offense of aggravated robbery. The jury assessed punishment at twenty (20) years in the Texas Department of Corrections.
On May 22, 1979, at approximately 10:30 p. m., Juan Menchaca1 returned to his home *Page 226 from a local convenience store carrying two bags of groceries. As he prepared to enter the front door of his home, he was approached from behind by a man who put a pistol to his head and was pushed off his porch. Once on the ground, his assailant straddled him, stole his wallet, fired a shot that apparently struck no one, and fled on foot.
Menchaca testified that he saw a "black hand and a chrome pistol"; that he was hit on the face when he attempted to look at his assailant's face, and that in his wallet he had less than $10.00 and his "immigration papers."
Menchaca chased his attacker a short distance, and noticed that his attacker was taller than he, and that the attacker was wearing dark clothes. Menchaca immediately reported the incident through his landlord, and the police were called. Shortly thereafter, a police officer on routine patrol in the area in question, observed appellant run between two houses about three and a half blocks from the scene of the robbery. Appellant was looking in different directions as he ran and was carrying what appeared to be his shirt in his hand. When appellant saw the officer, he bent down to the ground and dropped his shirt. He then picked up his shirt, turned around and started putting his shirt on and walked toward the officer's unit away from the area where he stooped down. While being questioned, appellant became very nervous and appeared to be trying to draw the officer's attention away from his hands. The officer inspected appellant's hands and found a dry, chalky, white paint substance on them and also on appellant's slacks. Unaware that Menchaca had been assaulted, the officer arrested appellant for disorderly conduct after appellant started yelling obscenities at the officer. At the time the officer reached the police station with appellant, a call came over the radio that a robbery had occurred in the general vicinity where appellant was arrested. The officer booked appellant for disorderly conduct, and returned to the spot where appellant had bent to the ground.
At that location the officer found a chrome-plated .22 caliber pistol with one spent cartridge under the hammer, and numerous identification papers bearing the name of Juan Menchaca.
The papers were a hospital identification card, issued by an insurance company under the name of "Juan Menchaca", and a United States of America identification card.2
The officer went to Menchaca's home and found the exterior painted walls to have a white, chalky finish that would rub off on a person if one brushed up against it.
Menchaca could not identify his assailant, but testified that appellant was of the same weight, height and color as the assailant. The State rested its case and the appellant offered no evidence. As is obvious, the conviction was based solely on circumstantial evidence.
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. Moore v. State, 523 S.W.2d 333 (Tex.Cr.App. 1976). 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). *Page 227
"In circumstantial evidence cases it is not necessary, however, that every fact point directly and independently to the defendant's guilt. It is enough if the conclusion is warranted by the combined and cumulative force of all incriminating circumstances. (citations omitted). The rules of circumstantial evidence do not require that the circumstances should to a moral certainty actually exclude every hypothesis that the act may have been committed by another person, but the hypothesis intended is a reasonable one consistent with the circumstances and facts proved, and the supposition that the act may have been committed by another person must not be out of harmony with the evidence. (citations omitted)." Flores v. State, 551 S.W.2d 364, 367 (Tex.Cr.App. 1977). (emphasis added).
In the case at bar, appellant was arrested minutes after the robbery in question, running from between two houses approximately three and a half blocks from the robbery. When appellant was spotted by the officer, he dropped his shirt to the ground in a rolling action as though he dropped something from the shirt. When the officer questioned appellant, he was very nervous and was trying to hide his hands from the officer. The officer inspected his hands and found that they had what appeared to be a white, chalky paint on them and also on his black trousers. This was similar to the chalky, white paint one gets when you rub against the victim's house. Approximately twenty (20) minutes later, the officer returned to the spot where appellant had bent to the ground and found a .22 caliber, chrome-plated revolver. The revolver had a spent cartridge indicating that it had been fired. Also found at that spot was Menchaca's "immigration papers" that he testified were in his wallet when it was taken from him. The victim was unable to see his assailant during the robbery, but did say that appellant was the same height, weight and color as the assailant.
While none of these facts point directly and independently to defendant's guilt, they need not do so. The jurors were properly instructed on the law of circumstantial evidence. All twelve of them were satisfied, beyond a reasonable doubt, that the conclusion of guilt was warranted by the combined and cumulative force of all the incriminating circumstances. In other words, the jury concluded that every reasonable hypothesis, other than the guilt, was excluded.
The jury was in a better position than we are to make this determination. I am not saying that jury verdicts should never be disturbed. What I am saying is that under these facts I am not willing to substitute our determination for theirs. Based on the combined and cumulative force of all the incriminating circumstances, the jury's verdict is reasonable.
The fact that Menchaca testified that he lived in one address while the "immigration papers" recited a different address is of no consequence. It is not uncommon for people to change addresses. The fact that the card was "issued" on a certain date, and some seven weeks later the robbery took place is also irrelevant. The fact that there was no evidence that Menchaca ever lived at the address on the card is not material. The fact that the officer, on encountering appellant, did not immediately search the area where appellant went down, or dropped something, but found these items some twenty minutes later, is not fatal. The officer at that point was not aware that a robbery had taken place. As to the gun, there is no legal requirement that it be positively identified as being the one used in the robbery.
I also disagree that the items in question the officer found in his search were not linked to Menchaca. The documents were linked to Menchaca by name, and also his picture was on one of the documents. The jury had the original documents before it, and they certainly were in a position to compare Menchaca's appearance and his appearance on the photograph. The jury also had the power, by using their common sense to make the inferences that they obviously did make regarding the documents, the gun, and the chalky, white paint on appellant's hands and trousers. I agree that it would *Page 228 have been better if the prosecutor had asked the victim some specific questions regarding his ownership and possession of the documents in question. However, the test is not whether the prosecutor should have asked the victim some pertinent questions regarding ownership and possession of the documents that would have made the case "airtight". The test on appeal in reviewing a circumstantial evidence case is whether there was evidence in the record from which the jury, after having been properly charged as to the law on circumstantial evidence, might reasonably conclude that every reasonable hypothesis, other than defendant's guilt, was excluded.
This case is very similar to the case of Washington v. State,518 S.W.2d 240 (Tex.Cr.App. 1975). This was also a case where no witness was able to identify the appellant at the scene of the crime. Three men were placed in a getaway car near the store where the robbery occurred; the car bore the description and license plate number of the vehicle belonging to appellant; the driver of the vehicle was observed wearing a hat similar in description to the one appellant was wearing when he was arrested; appellant and the two other men were arrested a few minutes after the robbery in a car which had been observed near the scene; money was found at the ground near the door of appellant's vehicle in approximately the same amount and denominations taken in the robbery; and a knife was used in the robbery and in the search of appellant's vehicle, a knife was found under the front seat. Under these facts, the Court of Appeals affirmed the conviction.
Appellant's point of error should be overruled, and the judgment of the trial court affirmed.