Blankenship v. State

780 S.W.2d 198, 1989 Tex. Crim. App. LEXIS 203, 1988 WL 138262

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of burglary of a habitation pursuant to V.T.C.A., Penal Code § 30.02. The jury assessed punishment at eight years in the Texas Department of Corrections, and the conviction was affirmed by the Court of Appeals in a published opinion. Blankenship v. State, 715 S.W.2d 132 (Tex.App.—Texarkana 1986). On appeal, appellant complained that the evidence was insufficient to support his conviction because the State failed to prove the burglarized premises was a “habitation” as defined by V.T.C.A., Penal Code § 30.01(1). We granted appellant’s petition for discretionary review because we believe the opinion below is arguably in conflict with Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976), and Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978). Tex.R.App. Pro. Rule 200(c)(3). .

I.

On the evening of August 19, 1984, the complainant, W.J. Weeks was relaxing at his home in Leesburg, Camp County. At about 9:00 p.m., his son, Perry, came home and informed his father that a blue van with open doors was parked in front of the rent house Weeks owned. After telling Perry to go and get the license number of the strange van, Weeks called the sheriff and then went over to the rent house, which was about three hundred yards from his home. There, he saw that a window had been smashed and the air conditioner unit which had been there was gone. There was a second air conditioner lying on the steps of the house.

Perry, meanwhile, had gotten in his truck and arrived at the rent house just in time to see the van speed away. After getting the license plate number, Perry followed the van down highway eleven and into Hall’s Wrecking Yard. There he and the driver “hollered” at each other. The van pulled away and Perry continued to chase it down the highway until it was stopped by the police.

At trial, it was established that appellant had taken an air conditioner, a lawn chair and a gasoline can from the rent house owned by Weeks. At the time the offense was committed, the house was being used by Weeks to store various items of property. It had not been rented for two years, and the utilities were not connected. The house was wired for electricity, but had no meter, and the water was turned off at its meter in the backyard. The issue, therefore, is whether there is sufficient evidence to show the structure burglarized by appellant was a “habitation” as that term is defined by statute.

II.

Burglary is either a first or second degree felony. Because punishment turns on whether the premises are a building or a habitation, the definition of “habitation” is critical.¹ “Habitation” and “building” are defined in § 30.01, supra, as follows:

(1) “Habitation” means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:

(A) each separately secured or occupied portion of the structure or vehicle; and

(B) each structure appurtenant to or connected with the structure or vehicle.

(2) “Building” means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.

In Jones v. State, supra, the issue decided was sufficiency of evidence to support an implied finding by the trial court that the structure involved was a habitation. 532 S.W.2d, at 597. But the Court did not hesitate to reject that finding in that the evidence did not square with its holding on the law, viz:

"... We hold that the structure ... must at the time of the alleged offense have been actually ‘adapted for the overnight accommodation of persons’ or at least at some prior time used for the overnight accommodation of persons and still be ‘adapted for the overnight accommodation of persons.’ ”

Id., at 600.

The court of appeals did indeed conclude that “the jury had ample evidence from which to conclude that the rent house was a habitation.” Contrary to Jones however, it believed, as a matter of law, that whether a structure is a habitation should not depend on “how much or what kind of furniture a building contains, or by whether the utilities are connected,” because:

“... A finished structure designed for, built as, and intended as a place for people to live is logically a habitation. Cf. Black’s Law Dictionary 640 (5th ed. 1979) (defining habitation as a place of abode, dwelling place, or residence).”

Blankenship, supra at 133.² We will now review that reason in law given for decision against the supporting reasoning of this Court in Jones, viz:

“... Thus, if the definition of a ‘building’ as a structure ‘intended for use or occupation as a habitation’ can have any meaning, then ‘habitation’ cannot be construed as meaning a structure or vehicle intended to be used as a residence or a dwelling.”

Blankenship v. State, supra, was criticized in Chandler v. State, 743 S.W.2d 736 (Tex.App.—Corpus Christi 1987) PDR filed and pending, the only appellate court which seems to have considered it. Therein the leading opinion by Justice Dorsey pointed out that “the logic of Blankenship appears to conflict with the requirement in Jones that the premises actually be adapted, and still be adapted, for the overnight accommodation of persons,” in that the Blankenship court “focuse[d] more on the subjective character of the premises than on the objective features showing adaption.” Id., at 738. The opinion found it “inconceivable that a reasonable person would find an unfurnished apartment fit for overnight accommodation.” Accordingly, it concluded:

“... While the apartment in the present case may have been intended for overnight accommodation, and may have been so used in the past, at the time appellant entered the apartment it was not actually so adapted.”

Id., at 739. See also Nye, C.J., concurring, at 742 ff.³

In our judgment, Justice Dorsey has found the key to open a door to understanding the definitive feature of “habitation” as defined in the statute. That is, the structure must have been adapted for and at the time of the offense be fit for accommodation “overnight.”

Hargett v. State, 534 S.W.2d 909 (Tex.Cr.App.1976), was delivered sans dissent some sixty days after the unanimous opinion in Jones, supra. Writing for the Court, Commissioner Green accurately summarized the facts and conclusions of law in Jones, and then considered in juxtaposition the facts in Hargett. Id,., at 910-911.⁴ The first factual matter he pointed to is (unlike the house in Jones): “It had been rented complete with furniture so that it certainly was adapted for overnight accommodation.” Id., at 911. (Indeed, it was furniture, including a “walnut bedroom dresser” and “parts of a bed,” Id., at 910, that was taken in the burglary.) Also (unlike the house in Jones), the residence in Hargett was not “a new one,” but one that the landlord “rented periodically,” and believed his new tenant “had moved some things into the house.” Ibid5

In this Court, therefore, every decision since Jones has recognized, acknowledged, understood and applied the formulation in Jones. The Blankenship opinion below does not even identify, much more discuss, the teaching of Jones; instead it is content merely to compare and contrast facts of prior decisions and, without noticing that in each one the Court came to its conclusion only after testing the facts against the Jones standard, to adapt a common dictionary definition as its own test for what is “logically a habitation.” Blankenship, supra, at 133.

III.

The court below purports to follow the “approach” that simply defers to the jury’s finding, in plain disregard of the authoritative construction of the statute in Jones, and in favor of its own view of what the construction ought to be. But Jones and its followings make abundantly clear that the evidentiary matters selected by the court of appeals in support of the trial court’s verdict are without significance.

Thus, that Weeks had once lived in the house until 1977, and that it had last been rented for “something over two years [ago],” tells us nothing about its “overnight accommodation” in 1984. A house with “two bedrooms” — but no beds — is hardly fit to accommodate persons overnight. That it is “wired for electricity” will not provide electrical energy for lights and other appliances such as an air conditioner until a meter is installed. Having water available by turning on the main at a water meter outside may be handy in daytime, but not overnight — unless coming out faucets and taps inside, the water is visible in the dark.

Finally, the record facts of the matter are, in the words of the owner when asked by the State, “[w]hat kind of property” he had “inside the house,” viz:

“Well, I had a — quite a few things, just general line items, a few garden tools and stuff. My daughter and her husband were having problems and stored some of their equipment and stuff in there. I had two window air conditioners.”

One air conditioner was taken in the burglary, along with such elegant residential furnishings as a lawn chair and a gasoline container. The owner never hinted that the “stuff” in rooms of the structure was there for any purpose other than storage. A “window air conditioner” stored away is not likely to provide “comfort of persons,” particularly when there is no “live” wire to which it can be connected.

Therefore, we hold the evidence is insufficient to establish that the premises was a “habitation” as defined in Jones and its progeny. The facts here are similar to those in Jones, supra, because the house involved, although it had been rented in the past, was not “still ‘adapted for the overnight accommodation of persons.’ ” Moss v. State, supra at 545, citing Jones v. State, supra. While the evidence may be sufficient to sustain a conviction for burglary of a building, a lesser included offense of burglary of a habitation, and a second degree felony, we are not authorized to determine punishment for that offense. Moss v. State, supra at 545 (Opinion on Appellant’s Motion for Rehearing). Therefore, we are constrained to order an acquittal. We express no opinion at this time as to whether appellant may be retried for any lesser included offense. Garrett v. State, 749 S.W.2d 784, 804 (Tex.Cr.App.1986) (Opinion on State’s Motion for Rehearing).

The judgments of the court of appeals and of the trial court are reversed and the cause is remanded to the trial court for entry of a judgment of acquittal.

CAMPBELL, J., dissents.

1 . See G. Reamey, CRIMINAL OFFENSES AND DEFENSES IN TEXAS 40-42 (1987).

2 . AH emphasis is mine throughout unless otherwise noted.

3 . When he comes to the part of Blankenship that resorts to Black’s Law Dictionary for a definition of "habitation,” see ante, at 200, Chief Justice Nye cogently counters:

"... While this reasoning is logical, it refers to the common dictionary meaning of the term habitation and fails to deal with the statutory definition of habitation, and the complexities wrought by the statute and case law.”

Id., at 744.

4 . Hargett made no attempt to distinguish the holding in Jones that the structure “must have been ‘actually adapted ...' and still ‘adapted for the overnight accommodation of persons.’ ” Jones v. State, supra, at 600. What Commissioner Green demonstrated is that whereas the facts in Jones failed legal tests Jones laid down to determine whether a structure is a habitation, the facts in Hargett fully met the tests. Thus the Court was following and applying the law of Jones. In Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978), the Court engaged in a similar exercise, beginning with a reiteration of Jones tests, then comparing facts of Jones with those of Hargett and finally deciding the facts of Moss “are more similar to Jones than Hargett." Id., at 544-545. Neither Hargett nor Moss deviated from the Jones tests.

5 . In Hargett v. State, supra, after the burglary the landlord, Len E. Clark, asked his tenant, John Poland, if the latter “had anything missing," and “Poland’s answer was struck from the record[.]” 534 S.W.2d at 911. It is clear enough to this writer, however, that what was stricken, probably on hearsay grounds, was Clark’s answer relating what Poland told him about items of Poland’s own property “missing” after the burglary, thereby tending to show Poland, the tenant, had actually occupied the habitation.