## Facts

- Merlon Sullivan Hines was convicted in a Texas district court of attempted burglary of a private residence at night with intent to commit theft.
- Two prior non-capital felony convictions were alleged for enhancement, and the jury assessed a life sentence.
- Between midnight and 1:00 a.m. on Halloween night, the homeowner, E. L. Flynt, was in his garage adjacent to his residence.
- Flynt heard a gate between the driveway and yard open and close and walked to the garage door.
- Flynt saw a man inside the fenced backyard standing at the back door, with one hand on the door and the other on the wall, looking through the screen door into the house.
- When Flynt turned on a backyard light, the man ran to the fence, jumped over it, and fled.
- Flynt identified Hines as the man he saw; the identification included a one-man confrontation and a later identification at an automobile agency.
- The State presented no evidence of physical damage to the door, lock, or screen, and no burglary tools or equipment were found on Hines.

## Issues

1. Whether the evidence showed an overt act, beyond mere preparation, sufficient to prove attempted burglary with intent to commit theft.
2. Whether the one-man confrontation and related identification procedures were so suggestive as to violate due process and bar the in-court identification.

## Decision

- On rehearing, the Texas Court of Criminal Appeals affirmed the conviction and life sentence.
- The court held the evidence sufficient for attempted burglary based on the nighttime circumstances, Hines’s conduct at the back door, and flight upon discovery.
- The court held the identification procedure did not deny due process and the in-court identification was admissible.

## Legal Principles

- Attempt requires an overt act that tends toward commission of the offense and exceeds mere preparation; intent may be inferred from conduct and surrounding circumstances.
- A jury may infer intent to commit theft from suspicious nighttime conduct directed at unlawful entry of a residence, even without proof of physical damage or possession of burglary tools.
- Flight upon discovery may be considered as circumstantial evidence of guilt.
- A one-man show-up does not automatically violate due process; exclusion is required only if the procedure is unnecessarily suggestive and creates a substantial likelihood of misidentification.
- An in-court identification is admissible when supported by an independent, reliable source based on the witness’s observations during the offense.

## Conclusion

The court upheld an attempted burglary conviction where the defendant was found in a fenced yard after midnight at the back door with a hand on the door and fled when seen, and it allowed an in-court identification despite a one-man confrontation because the witness’s identification rested on observations made during the incident.


Hines v. State, 458 S.W.2d 666 (Tex. Crim. App. 1970)