dissenting.
I can not agree with the holding of the majority in this case.
In his first point of error, appellant contends that the trial court erred in denying his motion for an instructed verdict because the State’s evidence failed to prove appellant’s commission of the offense beyond a reasonable doubt. In his second point of error, he contends that the evidence is insufficient to support the judgment of conviction. Since both grounds challenge the sufficiency of the evidence I will discuss them together.
Appellant presented no evidence in his defense. The only evidence before us is the evidence presented by the State in its case-in-chief. The majority, under our scope of review, has correctly set out that evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984).
Appellant argues that the State failed to prove either by direct or circumstantial evidence that he was criminally responsible as a party to the burglary of the complainant’s vehicle. Appellant points out that the State’s only probative evidence came from detective Morris who placed appellant at the scene where the burglary occurred, and from Detective Lockamey who placed appellant in the driver’s seat of the Buick where the complainant’s purse and driver’s license were in plain view. Further, appellant points out that no witnesses for the State testified that appellant was seen taking complainant’s pink purse out of her automobile, nor that appellant was in physical possession of the pink purse. He contends that the showing of his presence at the scene is not sufficient to sustain a conviction; that none of the events prior to the burglary affirmatively show appellant’s preparation for or participation in the crime; and that appellant’s “flight” as described by Detective Morris was calm, as if nothing unusual had happened.
The State contends that appellant’s unexplained possession of recently stolen property is alone sufficient so support a conviction for the burglary in which the property was stolen. Appellant maintains that since there were three men in the car he was driving, and the pink purse was discovered in the back seat, every reasonable hypothesis other than his guilt has not been excluded. The exact contention by the State was rejected by a majority panel of this Court in the appeal by Bobby Markham, appellant’s co-defendant, the man in the “green shirt.” The majority of a panel of this Court rejected the State’s contention of possession of recently stolen property and reversed the conviction. See Markham v. State, 714 S.W.2d 93, 96 (Tex.App.—San Antonio 1986, no pet.). I adopt the reasoning of this Court in Markham, and reject the State’s contention.
An inference or a presumption of a defendant’s guilt of a burglary or theft sufficient to sustain a conviction may arise from possession by a defendant of property stolen or taken in a recent burglary. However, in the prosecution for either a theft or a burglary, to warrant such an inference or presumption of guilt from the circumstances of possession alone, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion or right to the property by the defendant.
Jackson v. State, 645 S.W.2d 303, 306 (Tex.Crim.App.1983), citing Rodriguez v. State, 549 S.W.2d 747, 749 (Tex.Crim.App.1977).
In the instant case the evidence is insufficient to prove that appellant had any pur*202pose or design in common with the party, who without the effective consent of complainant, made entry into her car with the intent to commit theft and took her pink purse. There is no showing in the record that prior to the offense appellant acting with intent to promote or assist in the commission of the offense, solicited, encouraged, directed, aided or attempted to aid the principal in commission of the offense. Appellant’s “flight” from the immediate scene and subsequent assistance in driving the principal out of the vicinity, if chargable at all, was “hindering apprehension or prosecution.” TEX.PENAL CODE ANN. § 38.05 (Vernon 1974). I would therefore hold that the evidence was insufficient to show appellant was a party to the offense of burglary. See Strelec v. State, 662 S.W.2d 617, 619-20 (Tex.App.—Houston [14th Dist.] 1983, pet. ref d). I would uphold the points of error.
According, I respectfully dissent. I would reverse the judgment of conviction and remand this cause to the trial court for the entry of a judgment of acquittal.