#### James HALL, Appellant, v. The STATE of Texas, Appellee.

No. 27486.

Court of Criminal Appeals of Texas.

March 23, 1955.

Rehearing Denied May 4, 1955.

Mai‘tin- & Shown by W. E. Martin, Houston, for appellant.

' Dan Walton, 'Dist. Atty;, Eugeñe Brady, Jr., Asst. Dist. Atty., -Houston, .Leon Douglas, State’s Atty., Austin, for the State.

WOODLEY’ Judge. •'

Appellant was charged with.',tiíé| offense of burglary, with a prior conviction for an offense of like character alleged '.for the purpose of enhancement and,'upon conviction, his punishment was assessed af,twelve years in the penitentiary.

The prior conviction, as- alleged, was properly shown. James T.. Reid testified that about 11:30 A. M., January. 18, 1954, he closed his upstairs' apartment in-a-four-apartment building leaving no one in the apartment and' left the premisesthat' he returned about 2:45 P. M. the sáme day, found that someone had góríe into and pillaged his apartment, had taken therefrom some jewelry and money; and,that he did not give anyone his consent’t'o'enter his ¡apartment and take anything fj;oni: it. , , .

It was shown by two witnesses who lived in apartments to the rear óf ,’the' apartment building that about 2 P.'M.’ on' January 18, 1954, they saw appellant; accompanied by another, going from the .'reár”,óf! the apartment building around' toward' the front; that within a short timé'thése''twó witnesses, upon entering the rear' 'door of the Reid apartment, saw a man in the living room, chased-him-down :thé sfeíirs¡ .tq: the street where he got in an automobile and sped away.-- ■ • • It ¡v:;

Appellant was identified as one of the persons going from the rear of the -apartment building toward the front and as being the person who ran from the1 living room of the apartment.

Appellant did not testify but offered two witnesses who testified that they went to the apartment building at the time in question for the purpose of renting an, ápartment; that appellant was not present at the apartment; and they did not disturb or take anything from the Reid apartment.

Exception was reserved to the failure of the court to charge upon circumstantial evi*298dence. Appellant ■ insists that in as much as rio one testified that he saw appellant break and eriter the apartrhent, and there is no confession of such breaking and entry, the state’s case is circumstantial.

The facts are quite similar to those in Holland v. State, 45 Tex.Cr.R. 172, 74 S.W. 763. There, the owner left the room and closed the door, but did not lock it. Several minutes later his wife went to the room and found Holland there. Holland testified that he entered the room thinking it was á closet, but did not turn the knob because he f.ound the door open.. This • court overruled the contention, that the court' erred in- failing to charge on circumstantial evidence.

In Fields v. State, Tex.Cr.App., 74 S.W. 309, the defendant was discovered in a cold storage room, the' door of which was fastened. and which had been entered through a. ¡window which had been closed just prior to..the. time Fields was found in the house.'

The appellant ■ denied that he • entered through the window, and testified that he saw,a man drop á ham and piece of bacon as he ran from the building, and .seeing the do,or open, carried the ham and. bacon into the ho.us.e, entering through the door. The court' held .that if the state’s, theory' was true, the. case was not one of circumstantial evidence.

-We find no error in .the failure of the court to charge upon circumstantial evidence, and find the evidence sufficient to sustain the conviction.

The judgment is affirmed.

. On Motion for Rehearing

MORRISON, Presiding Judge.

.Appellant contends that a charge on circumstantial evidence should have been given in .connection with the proof of the identity of. the accused as being the person who had been convicted in the prior offense alleged for enhancement purposes. Our 'original opinion disposed, wc think properly, of the necessity of such a charge as related to the main fact in the case; that is, the breaking and entry by the- appellant. It is only where the evidence of the main facts essential to guilt is establishecl by circumstantial evidence "that such a charge need be given. *24*Tex.Juris., sec. 101, p. 587; Wilson v. State, 154 Tex.Cr.R. 59, 225 S.W.2d 173. Proof of the prior conviction was not a main fact essential to guilt, and no such charge is required in .connection with such proof. The proof on this question was similar in many respects to the type of proof approved by this Court in Handy v. State, Tex.Cr.App., 268 S.W.2d 182, and- we find the same sufficient: ;

Remaining' -convinced that. we- properly disposed of this cause originally, 'appellant’s motion' for rehearing is overruled.