Opinion
No. 43377.
January 13, 1971.
Appeal from the Criminal District Court No. 4, Dallas County, John Mead, J.
Howard B. Law, Donald R. Scoggins, Dallas, for appellant.
Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., W. T. Westmoreland, Jr., and Edgar A. Mason, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
The conviction is for felony theft; the punishment, five years.
The sufficiency of the evidence to sustain appellant's conviction as a principal in the theft of copper tubing from the Hughes-Walsh Plumbing Company, is challenged.
Leon Simons testified that he was the superintendent of the Hughes-Walsh Plumbing Company; that on the date in question he had under his supervision the construction of an apartment house at 1146 Diceman Street in Dallas, Texas, and that when his crew left work on the evening of January 31, 1967, approximately $300.00 worth or copper tubing had been installed; that when he returned the following morning all the copper tubing had been ripped out and was gone. The following morning Mr. Simons was called to the police department where he was able to identify the copper tubing taken.
Eugene Toney testified that he hauled trash and did carpenter work for a living and that in January, 1967, he was employed at the construction site on Diceman Street. At about 9:00 P.M. he was cleaning up in an area about 100 years from the apartment construction location when he saw three males, whom he identified as Truman Gulley, Luchen Green and Clarence Earl Stevens (the appellant), from a distance of approximately 50 feet, removing copper. Later in his testimony, Mr. Toney stated that this appellant was standing on top of the foundation of the apartment and was not ripping out the plumbing but that the other two were ripping out the copper tubing.
Truman Gulley, called by the defendant, testified that he and Luchen Green had driven to the job site, that they had pulled the copper out of the ground, that Luchen Green saw appellant 'walking down the road at night,' and that the appellant was with them when the copper was loaded into the car but that he did not participate in the taking of the copper. The following morning all three were arrested in the car, and the copper tubing was found in the trunk.
Appellant did not testify.
We find the evidence sufficient to sustain the jury's finding that appellant acted with the others in the commission of the theft and was a principal. Ibarra v. State, Tex.Cr.App., 444 S.W.2d 926; Tea v. State, Tex.Cr.App., 453 S.W.2d 179; Jones v. State, Tex.Cr.App., 436 S.W.2d 151; Gonzales v. State, 171 Tex.Crim. 373, 350 S.W.2d 553; 16 Tex.Jur.2d, Criminal Law, Secs. 61 — 62.
The judgment is affirmed.