J.T., Jr., Matter Of

824 S.W.2d 671, 1992 Tex. App. LEXIS 174, 1992 WL 7798
Court of Appeals of Texas·Decided January 22, 1992·No. No. 2-91-131-CV·Published

Opinion

OPINION

HILL, Justice.

J.T., Jr., appeals from an adjudication pursuant to TEX.FAM.CODE ANN. sec. 54.03 (Vernon 1986) that he has engaged in delinquent conduct, based upon a jury’s finding that he had burglarized a building. In four points of error, he contends that the evidence is insufficient to support the jury’s finding.

We affirm because we hold that the evidence is sufficient to support the jury’s finding.

Evidence presented to the jury showed that on or about December 30 or 31 of “this year” J.T., Jr., and another juvenile broke into and entered a fireworks stand owned by Glen Braddock and took a variety of fireworks, all without Braddock’s consent. We hold that this evidence is sufficient to support the jury’s finding that J.T., Jr., burglarized the building.

J.T., Jr., contends in point of error number one that the State failed to prove beyond a reasonable doubt that he is the person who committed the offense.

[672]*672Glen Braddoek, the owner of the fireworks stand, testified that after the incident in question the young man sitting to the left of Mr. Stevenson came into his store with someone else and sought to make restitution for the fireworks. After some discussion as to who said what, Braddock testified that this young man was the one who got on the phone with the district attorney and admitted that he and the other youth had committed the burglary. N.R. “Steve” Stevenson was the trial attorney for J.T., Jr.,, and represents him on this appeal.

Floyd Hamm testified that he ran the fireworks store for Braddoek. He said that he knew the young man seated over to the left as J.T., Jr. He said that on the night of the break-in J.T., Jr., had been at his house with another boy visiting his son and that he had asked them to leave.

Ben Edward Gray, Jr., testified that he knew this boy, J.T., Jr., and then he identified him in the courtroom. He said that he went to the home of P.G., another juvenile, that J.T., Jr., was there, and that he talked to him. He said that J.T., Jr., told him that “they had broke into fireworks that night.” He said that J.T., Jr., gave him the fireworks back. He said that the fireworks came from J.T., Jr.’s house. He indicated that J.T., Jr., was worried about Hamm’s son coming after him for breaking into his father’s stand.

P.G., the other juvenile, testified that he knew J.T., Jr., the kid seated to the left of Mr. Stevenson. He identified him as J.T., Jr., and said that his father’s name was J.T. also. He said he was with J.T., Jr., on the 30th of December when they decided to break into the fireworks stand. He related that after J.T., Jr. (he actually referred to him by his first name) punched out a vent on the stand and opened the door, they went in and grabbed some fireworks.

We must determine if, after viewing this evidence, a rational trier of fact could have found this element of the crime beyond a reasonable doubt. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). We hold that this evidence is sufficient to identify J.T., Jr., the juvenile on trial, as the one who, along with P.G., broke into the fireworks stand and stole fireworks from that stand. See Rohlfing v. State, 612 S.W.2d 598, 601 (Tex.Crim.App.[Panel Op.] 1981). J.T., Jr., presents no comparable authority. We overrule point of error number one.

J.T., Jr., asserts in point of error number two that the State failed to prove beyond a reasonable doubt that the act allegedly constituting delinquent conduct was committed on or about the date charged in the petition and authorized in the court’s charge to the jury. The petition alleging delinquent conduct alleged that the burglary occurred on or about December 31, 1990, the same date used in the court’s charge to the jury. The trial was held on March 14, 1991.

Glen Braddoek testified that he owned the property and store in question on December 30-31st of “this year.” He said that on December 30-31st he did not give J.T., Jr., permission to be in his building after hours. Braddoek said that he had owned the store since October 22 of “last year.”

Floyd Hamm testified that “back during the Christmas holidays” he was running a fireworks stand for Braddoek. He said that he had occasion to work on December 30th and 31st of “this year.” He said that he closed the stand on December 30th. He said that when he went to work the next morning that he noticed “a fireworks [sic] down on the ground” and saw that the window of the front door was busted out. He went in and noticed that everything was torn up and a bunch of fireworks gone.

Ben Gray testified that he had known J.T., Jr., for about a couple of months, but he really did not know for how long. He said that at some time prior to trial he had talked to J.T., Jr., who had told him that “they had broke into fireworks ‘that night.’ ”

P.G. testified he was with J.T., Jr., on December 30 when they decided to break into the fireworks stand. He said that they broke in about 11 or 12. We hold that this [673]*673evidence is sufficient to support the jury’s finding that J.T., Jr., committed this offense on or about December 31, 1990, because that is the only rational conclusion that they could have reached as to when the witnesses were saying the offense occurred. J.T., Jr.’s hypothesis that the evidence was referring to December 30th or 31st, 1991, which at the time of trial was a future date, is not a reasonable hypothesis. We overrule point of error number two.

J.T., Jr., argues in point of error number three that the evidence is insufficient to show that he burglarized a building because of evidence that he contends shows that the fireworks stand was a vehicle rather than a building.

As we interpret J.T., Jr.’s argument, he is not arguing that there was insufficient evidence to show that the fireworks stand is a building, but argues that there was additional evidence that showed that the building was actually a vehicle. Specifically, he calls our attention to Braddock’s description of the fireworks stand as a small little house built on a trailer. P.G., the other juvenile involved in the burglary, also testified that the fireworks stand was on a little trailer.

Chapter 30 of the Texas Penal Code deals with the subject of burglary and criminal trespass. TEX.PENAL CODE ANN. sec. 30.02 (Vernon 1989) deals with burglary, a second degree felony, and, under some circumstances, a first degree felony. TEX.PENAL CODE ANN. sec. 30.04 (Vernon 1989) deals with the burglary of a vehicle, a third degree felony. Under the terms of section 30.02, the offense of burglary must involve entry to, or concealment in, a building or habitation, whereas under the terms of section 30.04 the burglary of a vehicle involves breaking or entering into a vehicle. TEX.PENAL CODE ANN. sec. 30.01 (Vernon 1989) defines “habitation” in such a way as to include either a structure or a vehicle that is adapted for the overnight accommodation of persons, and “vehicle” is defined so as to exclude a “habitation” from what may constitute a “vehicle” in chapter 30.

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J.T., Jr., Matter Of, 824 S.W.2d 671, 1992 Tex. App. LEXIS 174, 1992 WL 7798 (Tex. Ct. App. 1992).

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Related

Bonham v. State
680 S.W.2d 815 (Court of Criminal Appeals of Texas, 1984)
Rohlfing v. State
612 S.W.2d 598 (Court of Criminal Appeals of Texas, 1981)