Bazroux v. State

634 S.W.2d 919, 1982 Tex. App. LEXIS 4301
CourtCourt of Appeals of Texas
DecidedMay 20, 1982
Docket01-81-0417-CR
StatusPublished
Cited by11 cases

This text of 634 S.W.2d 919 (Bazroux 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
Bazroux v. State, 634 S.W.2d 919, 1982 Tex. App. LEXIS 4301 (Tex. Ct. App. 1982).

Opinion

OPINION

DUGGAN, Justice.

Appellant was convicted by a jury for the offense of burglary of a habitation with intent to commit rape; punishment was assessed by the jury at forty years confinement in the Texas Department of Corrections.

In the early afternoon of August 28,1980, complainant had stopped by a friend’s home in order to check and take care of the house during the friend’s temporary absence. While complainant was at the house, appellant entered the house against complainant’s will and threatened her with a knife. He cut the telephone cords throughout the house and ordered her to undress, but suddenly left the premises without committing any further acts. He presents six grounds of error.

By his first ground of error, appellant alleges insufficiency of the evidence to show that the structure in question was a “habitation.” Section 30.02(a)(1) of the Texas Penal Code, V.T.C.A., defines “habitation,” in pertinent part, as “a structure ... adapted for the overnight accomoda *921 tion of persons.. .. ” As grounds for insufficiency, appellant urges that the owner was temporarily out of the country on a twenty-eight-day business tour, that the complainant did not reside there, that the only furniture or appliance shown in the evidence was a nightstand, bed and dresser, and that apparently the only operating utility was electricity. Appellant cites the case of Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976), holding that the subject structure was not a habitation where it was a completed but vacant and unused house, without furniture and any utilities except running water. Appellant also cites Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978), holding that the evidence was insufficient to show that a house was a habitation where the premises had been rented in the past but was unoccupied at the time of the burglary, and there were no light bulbs, the water was cut off, appliances were not hooked up, and most of the furniture was present for storage only.

However, three photograph exhibits of the home in the instant case reflect a completely equipped kitchen, and testimony established that there were other furnishings, telephones in the kitchen and bedroom, and electricity. This case more closely parallels the decision of Hargett v. State, 534 S.W.2d 909 (Tex.Cr.App.1976), where a completely furnished house, ready for leasing but as of yet unrented, was held to be a habitation. Nothing in the record indicates that the premises was in a condition other than one of suitability for the owner’s resumption of normal life upon his return from the periodic travel required in his employment. Appellant’s first ground of error is overruled.

Appellant’s second ground of error alleges error in the admission of evidence of an extraneous offense. Appellant’s wife testified on direct examination as a defense witness at the punishment hearing, in an effort to minimize the impact of appellant’s prior criminal record. She testified that appellant was a kind, hardworking, non-violent person, who had been arrested earlier and charged with possession of a prohibited weapon which, unknown to him, was behind the seat of his uncle’s automobile that he was driving. She further testified, without objection from the State, that she was with him at the time of his arrest for carrying the prohibited weapon. During her cross-examination testimony, the following transpired:

Q. Do you remember why the police were stopping those type of vehicles?
A. Because of problems they were having in Bridge City.
Q. Do you know why they were stopping those vehicles?
A. Because they had said there was a robbery or something in Bridge City.
Q. Someone driving a vehicle similar to that was involved in a robbery where a gun was used, correct?
A. Yes, sir.
Q. Do you remember that?
A. Yes, sir.
Q. And they stopped El Caminos that fit the description of a vehicle used in a robbery in Bridge City and your husband was stopped and he had a pistol but no robbery was ever filed on him for some reason, is that correct?
MR. SCARDINO: Objection.
THE COURT: She may answer if she knows.
Q. He was never filed on for robbery?
A. No.

Appellant’s general objection was not sufficient to preserve error. Carr v. State, 600 S.W.2d 816 (Tex.Cr.App.1980). The cross-examination of appellant’s wife was a permissible attempt to explain the circumstances of the arrest which the appellant had brought before the jury. No error is shown. Art. 38.24, V.A.C.C.P.; Bermudez v. State, 504 S.W.2d 868 (Tex.Cr.App.1974); Wintters v. State, 616 S.W.2d 197 (Tex.Cr.App.1981). Appellant’s second ground of error is overruled.

In his third ground of error, appellant urges that the trial court erred in allowing the State to impeach the appellant on collateral matters. Appellant’s direct examination had concluded with his own alibi testimony that he had not been in the Sa-gemont subdivision neighborhood on the day of the incident; that he “didn’t even *922 know where it was;” that he saw the complainant for the first time at trial, and that he had not committed the offense. During cross-examination of appellant, the prosecutor elicited the following:

Q. Do you know where you were on the 29th day of August of 1980?
A. Yes, sir.
Q. Where were you?
A. Working.
Q. Did you make deliveries that day?
A. Yes, sir.
Q. Did you make any deliveries in Friendswood?
A. No, sir, we don’t have anything in Friendswood.
Q. You weren’t in Friendswood on the 29th, were you?
MR. SCARDINO: There is no probative value as to what happened after that day.
MR. POE: He said he never went to any other neighborhood. I can prove otherwise.
THE COURT: Overruled.

Appellant raised only a general objection, and while appellant asserts on appeal that this was impeachment on a collateral issue, there was no impeachment until the State later elicited testimony rebutting appellant’s above statements.

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Cite This Page — Counsel Stack

Bluebook (online)
634 S.W.2d 919, 1982 Tex. App. LEXIS 4301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bazroux-v-state-texapp-1982.