Canada v. State of Texas

636 S.W.2d 632, 1982 Tex. App. LEXIS 4825
CourtCourt of Appeals of Texas
DecidedJuly 28, 1982
Docket04-81-00233-CR
StatusPublished
Cited by7 cases

This text of 636 S.W.2d 632 (Canada v. State of Texas) 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
Canada v. State of Texas, 636 S.W.2d 632, 1982 Tex. App. LEXIS 4825 (Tex. Ct. App. 1982).

Opinions

OPINION

BUTTS, Justice.

This is an appeal from a conviction for the offense of burglary of a habitation. Following conviction by the jury, the court assessed punishment at five years’ confinement. Appellant brings five grounds of error, citing error in the jury charge on “parties”; denial of a speedy trial; fundamental error in the jury charge which omitted the general culpable mental state in applying the law to the facts; insufficient evidence to prove the entry was “without the effective consent of the owner;” and failure to give appellant full jail-time credit. We agree with the argument in the fifth ground of error and reform the judgment in that respect. However, we do not agree with the remaining contentions and affirm the judgment as reformed.

In his first ground of error appellant complains of the jury charge given on “parties to the offense.” Tex.Pen.Code Ann. §§ 7.01 and 7.02(a)(2) (Vernon 1974).1 Appellant objected orally to the charge, and the trial court overruled the objection. Counsel for appellant then inquired whether his objection was “preserved, or do I need to submit it.” The trial court replied it was preserved and to have the court reporter type up the objection. The trial court emphasized the objection was preserved. The State did not object.

Article 36.14, Tex.Code Crim.Pro. Ann. (Vernon Supp.1982) provides that objection to the court’s charge shall be presented in writing. After September 1, 1975, the requirement was satisfied by dictating objections to the court reporter in the presence and with the consent of the trial court where the subsequent transcription was endorsed with the court’s ruling and official signature. Frazier v. State, 576 S.W.2d 617, 619 (Tex.Cr.App.1979). In light of the ruling in Dirck v. State, 579 S.W.2d 198, 202 (Tex.Cr.App.1979) that there was substantial compliance with art. 36.14, supra, even though there was no endorsed ruling with the trial judge’s official signature thereon, we find substantial compliance in the present case.2

This case is a circumstantial evidence case. A jury charge on circumstantial evidence as well as the charge on parties was given. Appellant argues the evidence may show his guilt as the principal offender but not as a party. He urges reversal because the evidence did not raise the issue of parties. This court disagrees.

[634]*634The record discloses Thomas Franklin, Jr. discovered his niece’s house in San Antonio had been burglarized when he routinely “checked it” on January 17, 1980, while she was in the hospital. He had gone into the house that morning and come back in the afternoon about 5:30 or 6:00 p. m. All the rooms were then in disarray and many items, including two television sets, a stereo, furs, clothes, and other property were missing. He observed the back door’s lock had been “chiseled away” and the bolt beaten back in order that entry could be effected. He stated he did not give appellant permission to enter the house. Patsy Murry, the niece who rented the house and lived there with her son, testified she did not give appellant permission to enter the house. Further, her son repeated the denial.

Franklin, who lived close by, and 18-year-old Reginald Murry, talked with persons in the neighborhood to find a possible witness. They located Ernest Rodriguez, who lived directly behind the burglarized house. Rodriguez produced a lamp belonging to Mur-ry and explained he had paid Chris Lamielle two dollars for it that very afternoon. Lamielle lived in the neighborhood. Appellant lived next door to Murry. Reginald Murry, on the evening of the burglary, went to the house of Lamielle’s girlfriend, who also lived in that neighborhood. From her he recovered the Murrys’ stolen stereo.

The San Antonio Police Department fingerprint expert at the trial testified that the fingerprint (thumbprint) lifted from a spray can of deodorant at the scene was that of appellant. Evidence established that appellant had never been an invited visitor in the Murry house. Further, evidence established that Lamielle went to appellant’s house on the day of the burglary.

In determining whether one has participated as a party to an offense, the trial court may look to events occurring before, during, and after the commission of the offense, and reliance may be placed on actions of the parties which show an understanding and common design to do a certain act. Tarpley v. State, 565 S.W.2d 525, 529 (Tex.Cr.App.1978) and cases cited therein.

The burglary of the house, the disposition on the same day by Lamielle of two items stolen from the burglary, the lamp and stereo, the acquisition of appellant’s thumbprint from inside the burglarized premises, the relationship of appellant and Lamielle could all be considered by the jury to determine complicity.

Appellant’s reliance on Savant v. State, 544 S.W.2d 408 (Tex.Cr.App.1978) is misplaced, for that indictment charged Savant and Bacon together with unlawfully carrying “on their person” a pistol with which they assaulted and shot the victim. In applying the law to the facts, the trial court instructed the jury it might find Savant guilty of the offense not only as a principal but also on the theory of his acting alone. The reviewing court reversed the case, stating that the charge permitted the jury to find Savant guilty on a theory unsupported by the evidence.

The instant charge required the jury to find the appellant did, either acting alone or together with another as a party, enter a habitation without the effective consent of the owner with the intent to commit theft. We find the evidence was sufficient to show appellant committed the offense of burglary, either acting alone or as a party. In the present case there was no allegation of parties in the indictment; however, a charge on the law of parties may be given when it is supported by the evidence even though criminal responsibility for the acts of another is not pled in the indictment. LeDuc v. State, 593 S.W.2d 678, 685 (Tex.Cr.App.1979), Pitts v. State, 569 S.W.2d 898, 900 (Tex.Cr.App.1978). We hold that, under the facts of this case,3 the [635]*635trial court correctly submitted the charge on parties. The Court of Criminal Appeals in Galvan v. State, 598 S.W.2d 624, 629 (Tex.Cr.App.1979) discussed when a parties charge should be given:

[WJhen the state of the evidence is such that an accused alone committed the offense or was acting together with another or others in doing so, the law of parties becomes applicable.

The ground of error is overruled.

Appellant in his second ground of error alleges he was denied a speedy trial. Tex. Code Crim.Pro.Ann. art. 32A.02 (Vernon 1981). Arrested January 31, 1980, indicted April 2, arraigned April 11, appellant had his first trial setting May 12, 1980. The State announced ready. Trial was reset to June 30. On July 1 the court commented to counsel:

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Related

Puente v. State
888 S.W.2d 521 (Court of Appeals of Texas, 1994)
Ex Parte Canada
754 S.W.2d 660 (Court of Criminal Appeals of Texas, 1988)
Canada v. State
660 S.W.2d 528 (Court of Criminal Appeals of Texas, 1983)
Gonzalez v. State
648 S.W.2d 740 (Court of Appeals of Texas, 1983)
Canada v. State of Texas
636 S.W.2d 632 (Court of Appeals of Texas, 1982)

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Bluebook (online)
636 S.W.2d 632, 1982 Tex. App. LEXIS 4825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canada-v-state-of-texas-texapp-1982.