Alexander v. State

873 S.W.2d 793, 1994 Tex. App. LEXIS 817, 1994 WL 127237
CourtCourt of Appeals of Texas
DecidedApril 13, 1994
DocketNo. 09-92-246 CR
StatusPublished
Cited by7 cases

This text of 873 S.W.2d 793 (Alexander v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexander v. State, 873 S.W.2d 793, 1994 Tex. App. LEXIS 817, 1994 WL 127237 (Tex. Ct. App. 1994).

Opinions

OPINION

BROOKSHIRE, Justice.

This is an appeal from a conviction for the felony offense of burglary of a building with the intent to commit theft. The appellant pleaded not guilty to the charge of burglary; the jury found the appellant guilty. On October 8, 1992, the trial court found the enhancement paragraphs of the indictment to be true and sentenced the appellant to forty-five years confinement in the Institutional Division of the Texas Department of Criminal Justice. The judgment of the trial court is affirmed.

[794]*794 Statement of the Facts

On June 27, 1991, at about 10:30 p.m., Officer Timothy Allison was on patrol headed eastward on Beaumont Avenue in the City of Liberty. As he approached the intersection of Beaumont Avenue and Davidge, he observed two individuals, one of whom he identified as the appellant, carrying a window air-conditioning unit. Deputy Allison went around the block to question the two individuals about the window air-conditioner that they were carrying. However, they no longer had the air-conditioner. Deputy Allison walked back to the area near the intersection where he had first seen the two individuals carrying the air-conditioner. The deputy found the air-conditioning unit placed against a tree.

When Liberty Police Officer Tom Chapman arrived, Deputy Allison walked across the street. After crossing the street, the deputy found the building where an air-conditioning unit had been located. The building had an open window. Upon investigating, the deputy saw through the open window a front cover of an air-conditioning unit laying on the floor inside the building. The air-conditioning unit was found across the intersection from the building. When Deputy Allison looked inside the building from the outside of the window, he also noticed that a table appeared to be out of place. Furthermore, the deputy noticed three pry marks on the window frame.

Officer Bruce Oliphant, another Liberty police officer, arrived at the scene of the offense. The building in question was known as Hair By Sue, a hair salon. Prints were lifted off the air-conditioning unit; several fingerprints were identified as those of the appellant by the district attorney’s investigator.

When Officer Oliphant testified about his investigation of the scene and upon examination of the window frame, where the air-conditioning unit had been located, he discovered that a piece of plastic molding still in the window frame appeared to have been broken out when the unit was removed at an angle facing downward into the building. This is evidence of an entry and an intrusion. Officer Oliphant identified the other individual who was with the appellant as Freddie Lee Burnell. Officer Oliphant testified that there were signs of forced entry into the building at the window.

Upon cross-examination by the appellant’s attorney, Officer Oliphant testified that he saw sufficient evidence to show that someone’s hand and arm had been in the building in order to unplug the unit after it had been removed from the window. Officer Oliphant testified that based on the angle of the unit’s framing that was left in the window frame, he determined that a person had to intrude part of their body or an object connected thereto into the building to get the air-conditioning unit out at that angle and to remove it.

The owner of Hair By Sue was Susan Sanders. Ms. Sanders testified that normally her business closed between 6:00 and 6:30 p.m. each day. On June 27,1991, she recalls that upon closing around 6:30 p.m., she had two window air-conditioning units in her business establishment. On that night, when the police called her to inform her of the burglary and when she arrived at her business, she noticed that one of her units was gone. She saw the air-conditioning unit across the street. Ms. Sanders stated that normally the window where the air-conditioning unit was located was nailed in position. She said sticks were placed in the window frame to keep the unit in place so that the metal lip on the air-conditioning unit would be positioned inside the window. Further, she testified that the plug on the air-conditioning unit was just a little bent; but, she was still able to plug it in and use the unit. Ms. Sanders testified that the window was still intact and that there was no way the air-conditioning unit could have been pulled straight out without it being handled and jostled from the inside.

The next witness to testify for the State was Freddie Burnell. Burnell was the individual arrested with the appellant. He testified that the appellant had told him about the air-conditioning unit and suggested to him that they could make some quick money. This conversation happened around 4:00 or 4:30 p.m. on the afternoon of June 27th. [795]*795They proceeded to take the air-conditioning unit later that evening.

The appellant has presented to this Court one point of error which avers that there is insufficient evidence to convict the appellant of burglary because the State has not proved that the appellant entered a building, an essential element of the offense of burglary.

When the appellate courts are asked to review questions of sufficiency of the evidence, it is well settled that the appellate courts must look at all the evidence in the light most favorable to the jury’s verdict to determine whether any rational trier of fact could have found the necessary elements of the crime beyond a reasonable doubt. See Marroquin v. State, 746 S.W.2d 747 (Tex.Crim.App.1988).

The Texas Penal Code, section 30.-02(a)(1) defines burglary. This section, in relevant part, provides that a person commits the offense of burglary if, without the effective consent of the owner, the person enters a building (or any portion of a building) not then open to the public with the intent to commit a felony or a theft. “Enter” has been defined in sec. 30.02(b) as the intrusion of any part of the body or any physical object connected with the body. We hold the unit was “any physical object connected with the body.” The gist of burglary is the entry with the requisite intent.

Burglarious entry may be shown by circumstantial evidence. Jones v. State, 458 S.W.2d 89 (Tex.Crim.App.1970). The testimonies of Officer Oliphant and owner Susan Sanders proved entry.

The appellant’s contention is that there was no entry. We must disagree. In the instant case, it must be emphasized that the air-conditioning unit was not only positioned on the outside of the building but an important working part of this unit was on the inside. Hence, in order to remove the unit from the window at the angle of removal, there must have been some interior action on the part of the appellant and his cohort to effect removal of the unit at such downward angle.

We hold, inasmuch as the appellant’s fingerprints were definitely on the unit, that the stolen air-conditioning unit itself was, under sec. 30.02(b), a physical object connected to the body of John Alexander.

The appellant has ignored eases in which the Court of Criminal Appeals has held that entry may be shown by circumstantial evidence. See Clark v. State, 543 S.W.2d 125 (Tex.Crim.App.1976).

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Bluebook (online)
873 S.W.2d 793, 1994 Tex. App. LEXIS 817, 1994 WL 127237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-state-texapp-1994.