#### W. L. ERWIN, Appellant, v. The STATE of Texas, Appellee.

No. 44265.

Court of Criminal Appeals of Texas.

Nov. 23, 1971.

Rehearing Denied Jan. 26, 1972.

Robert D. McPherson, Wheeler, for appellant.

Jack B. Boone, Dist. Atty., Memphis, and Jim D. Vollers, State’s Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of cattle theft. Punishment was assessed by the court at 2 years.

The sufficiency of the evidence is challenged.

Jim Campbell testified that from September 1967 until March 1968 he had some cattle on Julius Meaker’s place in Carson County. These cattle were all marked and branded. The ear mark on the cattle was “a swallow fork and underbit in the left ear.” The brand was “an IS on the left hip.” When he took the cattle from the Meaker place two were missing. He identified a photograph1 of a heifer sold at the Amarillo Auction with the “IS” brand clearly visible as resembling one of the two missing cattle.

Julius Meaker testified that two of the cattle were missing from the herd at the time and place in question and that someone had physically placed one of the heifers *713into one of his loading shoots at a time when he was gone.

F. J. Boughan testified that he hauled 24 head of cattle for appellant from the Bobby McBrayer farm to Amarillo on March 18, 1968, and all but one of these cattle were branded with a “Boot brand,” and that one had the “IS” brand on it. The appellant branded a “Boot” on the left hip. Upon arrival in Amarillo, Boughan informed appellant of the one heifer with the “IS” brand and he testified, “Mr. Erwin told me he had bought these cattle at a sale ring; that he owned the cattle, and that he intended to sell them.”

W. I. Bennett testified that he was a Brand Inspector and was working in Amarillo on the date these cattle were delivered. He stated that the appellant’s cattle were of poor quality and that Campbell’s cattle were of good quality. Upon observing the “IS” brand on the good quality heifer, he approached appellant, who “ * * * said it was his heifer. He had bought her in Oklahoma, I believe Sayre or Erick, one place — I couldn’t be sure about the place. I said, well, it definitely has Mr. Campbell’s brand, and he said it was still his heifer, that is where he had bought it.” Witness Bennett further testified that he observed the aforementioned ear mark on the heifer.

These cattle were sold on the date of delivery and shipped to Sterling, Colorado.

Duane Cates, Inspector for the Texas and Southwestern Cattle Raiser’s Association, testified that he and a Special Texas Ranger had a conversation with appellant and he told them that he bought the heifer in Oklahoma. Cates stated that he went to Oklahoma to investigate the alleged purchase. He learned that appellant had in fact bought five cattle in Oklahoma but that these were poor quality cattle, none of them the quality of the Campbell cattle. He stated that there was no record of an “IS” brand or the ear mark on any of the five cattle appellant had bought in Oklahoma.

Appellant testified that he bought the heifer in dispute at a sale in Oklahoma. Mrs. L. R. Webb was called as a witness by the defense. She testified that she and her husband operate the Webb Livestock Sale in Sayre, Oklahoma, and stated that the appellant had purchased cattle through their sale. She knew nothing of an “IS” brand and stated that their firm never branded cattle.

The court charged the jury upon the law of circumstantial evidence and we conclude that the evidence was sufficient to support the verdict.

The judgment is affirmed.

1

. State’s Exhibit No. 1.