APPELLANT

APPELLEE

PER CURIAM

A jury found appellant guilty of burglary of a habitation. Tex. Penal Code Ann. § 30.02 (West 1989). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for forty-five years.

On the night of February 26, 1993, someone broke a window and entered the apartment residence of Martin Hornsby in San Marcos. Hornsby testified that the intruder stole a gold rope necklace and a television. Hornsby identified State's exhibit one as a photograph of the television taken from his apartment. He said the television was returned to him by the police.

Andrew DeLeon testified that he and appellant were drinking beer together on the night of February 26, 1993, at an address on C.M. Allen Parkway. During the course of the evening, appellant borrowed DeLeon's car to go purchase more beer. When appellant returned nearly two hours later, he had a gold rope necklace and a television. When asked by DeLeon where he got these items, appellant said he broke into an apartment and stole them. DeLeon then went with appellant to another location, where appellant gave the stolen television to another man. After this, appellant took DeLeon to the apartment he burglarized. DeLeon saw that a window of the apartment was broken. Eventually, appellant and DeLeon parted company. DeLeon returned to the scene of appellant's break-in, where he encountered investigating police officers and told them his story.

Benny Maldonado testified that appellant brought a television to his San Marcos apartment on the night of February 26, 1993. Appellant told Maldonado that he was helping a friend get rid of the television and asked Maldonado to keep it until the next day. The police came to Maldonado's apartment the following morning and took the television.

Appellant's only point of error is that the evidence is insufficient to sustain the conviction, but his argument is more specific than that. Appellant urges that DeLeon was an accomplice and that his testimony was not corroborated by other evidence tending to connect appellant to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979). ⁽¹⁾ We find this contention to be without merit.

For a witness to be considered an accomplice, there must be some evidence of an affirmative act on the witness's part to assist in the commission of the offense. Kunkle v. State, 771 S.W.2d 435, 440 (Tex. Crim. App. 1986). There is no such evidence in this cause. The uncontradicted testimony was that DeLeon loaned his car to appellant so that appellant could purchase beer, and that DeLeon did not learn of the burglary until after its commission. Appellant asserts that DeLeon was to receive part of the proceeds from the burglary, but the evidence reflects only that appellant offered to "cut you in on the deal" when DeLeon became angry. Even if DeLeon had been shown to be an accomplice witness, Maldonado's testimony was sufficient, considered in the context of the remaining nonaccomplice evidence, to connect appellant to the offense and thereby to corroborate DeLeon's testimony.

The evidence as a whole is legally sufficient to sustain the conviction, although there is no direct evidence linking appellant's activities to the burglary at Hornsby's apartment. Neither DeLeon nor Maldonado was asked if the television identified by Hornsby and shown in State's exhibit one was the television in appellant's possession on the night in question. ⁽²⁾ Neither DeLeon nor any other witness testified that C.M. Allen Parkway is in San Marcos, and DeLeon did not describe in any way the location of the apartment appellant claimed to have entered. DeLeon did testify, however, that after appellant had been gone in DeLeon's car for over an hour, he tried to find him at a nightclub in San Marcos. From this, and from Maldonado's testimony that his apartment was in San Marcos, the jury could infer that the burglary appellant confessed to DeLeon took place in that city.

Thus, the evidence shows that on February 26, 1993, appellant broke a window and entered an apartment in San Marcos, from which he stole a gold rope necklace and a television. That same night, someone broke a window and entered Martin Hornsby's apartment in San Marcos and stole a gold rope necklace and a television. Appellant took the television he stole to Maldonado, who in turn gave it to the police. Hornsby recovered his television from the police. The jury could rationally conclude that it was unlikely that two identical burglaries were committed on the same night in San Marcos. The jury could therefore infer that the burglary committed by appellant on February 26, 1993, and the burglary of Hornsby's apartment on that date were one and the same offense. The circumstantial evidence is legally sufficient to sustain the conviction. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). The point of error is overruled.

The judgment of conviction is affirmed.

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: April 6, 1994

Do Not Publish

1. Appellant did not request a jury instruction on accomplice witness testimony and none was given. The Court of Criminal Appeals has held that the corroboration requirement must be applied to the testimony of any accomplice when reviewing the sufficiency of the evidence even in the absence of an accomplice witness instruction. Hammonds v. State, 316 S.W.2d 423, 424 (Tex. Crim. App. 1958); Pitts v. State, 210 S.W. 199 (Tex. Crim. App. 1919). That court has since held, however, that the sufficiency of the evidence is to be determined in light of the jury charge. Boozer v. State, 717 S.W.2d 608 (Tex. Crim. App. 1984); Benson v. State, 661 S.W.2d 708, 714 (Tex. Crim. App. 1983) (opinion on State's second motion for rehearing). This has led some to question the continuing validity of the holding in Hammonds and Pitts. Boozer, 717 S.W.2d at 620 (Onion, P.J., dissenting); see also Saunders v. State, 794 S.W.2d 91 (Tex. App.--San Antonio 1990), aff'd, 817 S.W.2d 688 (Tex. Crim. App. 1991). Because of our disposition of appellant's point of error, we need not reach this question.

2. DeLeon described the television as "a 19 remote color TV, gray." The jury was able to compare this description with State's exhibit one, the photograph of Hornsby's television. The photocopy of the exhibit in the appellate record is of such poor quality that it is impossible for us to make such a comparison.