LaPoint v. State

750 S.W.2d 180, 1988 Tex. Crim. App. LEXIS 83, 1986 WL 111

• Court: Court of Criminal Appeals of Texas
• Decided: May 4, 1988
• Docket: 227-86
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of burglary of a building. Punishment was assessed by the jury at confinement in the Department of Corrections for 11 years and one day.

On appeal the Dallas Court of Appeals reversed the conviction due to a defective jury charge citing Cumbie v. State, 578 (Tex.Cr.App.1979). LaPoint v. State (Tex.Cr.App. No. 05-84-0069 CR— 1/4/85). We granted the State’s Petition for Discretionary Review and remanded to the Court of Appeals for consideration of the error in the jury charge in light of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), decided after the original opinion of the Court of Appeals.

On remand the Court of Appeals withdrew its original opinion and turned its attention to other grounds of error. In another unpublished opinion the Court of Appeals again reversed the conviction holding that the trial court, over objection, had erred in instructing the jury that “the act of breaking and entering a building at nighttime raises a presumption that the act was done with the intent to commit theft.” LaPoint v. State (Tex.App.—Dallas—05-84-00669 CR—12/30/85). We again granted the State’s Petition for Discretionary Review to determine the correctness of this second holding of the Court of Appeals.

Appellant was convicted as a party to the offense of burglary committed by co-defendant Shockley. V.T.C.A., Penal Code, § 7.02. The co-defendant was convicted in a separate trial, but his conviction was reversed on appeal on the same basis as appellant’s. Shockley v. State, 695 S.W.2d 754 (Tex.App.-Dallas 1985) (Pet. granted— still pending). Shockley was cited as authority for the action taken by the Court of Appeals in its second opinion.

At the guilt stage of the trial the court charged the jury in part as follows:

“Our law provides that the act of breaking and entering a building at nighttime raises a presumption that the act was done with the intent to commit theft. Such presumption is rebuttable.

"You are further charged (a) that the facts giving rise to the presumption must be proven beyond a reasonable doubt; (b) that if such facts are proven beyond a reasonable doubt you may find that element of the offense sought to presumed exists, but you are not bound to so find; (c) that even though you may find the existence of such element, the State must prove beyond a reasonable doubt each of the other elements of the offense charged; and (d) that if you have a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails, and you shall not consider the presumption for any purpose.

“So, in this case, before you may presume that Daniel Gaston Shockley, Sr. intended to commit theft, you must find from the evidence beyond a reasonable doubt that he had broken into and entered the building belonging to the complainant in the nighttime without the effective consent of the complainant, and if you have a reasonable doubt thereof, then the presumption fails and you will not consider such presumption for any purpose.

“If it is proven to you beyond a reasonable doubt that the said Daniel Gaston Shockley, Sr. did break and enter the building in question on the occasion in question at nighttime, Daniel Gaston Shockley, Sr.'s intent to commit theft may be presumed from these facts, but you are not bound to so find.

“Even though the existence of the intent to commit theft is found from the presumption raised by the facts stated in the preceedings (sic) two paragraphs, the State must prove to you beyond a reasonable doubt each of the other elements of the offense charged as well.

“If you have a reasonable doubt that Daniel Gaston Shockley, Sr. did in fact break and enter the building in question on the occasion in question at nighttime, then the presumption fails and you shall not consider the presumption for any purpose.”

It is obvious that the trial court sought to charge in accordance with V.T.C.A., Penal Code, § 2.05.

Appellant objected and expressly pointed out that § 2.05 applied only to a presumption with respect to any fact established by the Penal Code itself “or another penal law” and that the “presumption” involved was not so established nor was such a charge authorized by case law. The objection was overruled.

Appellant was charged with burglary of a building under V.T.C.A., Penal Code, § 30.02(a)(1), which provides:

“(a) A person commits an offense if, without the effective consent of the owner, he:

“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or....” (Emphasis supplied.)

Intent, as an essential element of the offense of burglary, must be proved by the State beyond a reasonable doubt; it may not be left simply to speculation and surmise. Greer v. State, 437 S.W.2d 558, 559-560 (Tex.Cr.App.1969). To find that burglary has been committed there must be evidence not only showing burglarious entry but also that the party at the time he entered had specific intent to commit theft or a felony as alleged in the burglary indictment. Greer, supra, at p. 560. Nothing in our burglary statutes or other statutes indicates that a presumption from the evidence arises with regard to proof of intent as an essential element of burglary. As a question of fact for the jury, however, intent may be inferred from the surrounding circumstances. Mauldin v. State, 628 S.W.2d 793, 795 (Tex.Cr.App.1982); Ortega v. State, 626 S.W.2d 746, 749 (Tex.Cr.App. 1982); Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978); Williams v. State, 537 S.W.2d 936 (Tex.Cr.App.1976); Hawkins v. State, 467 S.W.2d 465 (Tex.Cr.App.1971). See also Wilson v. State, 658 S.W.2d 615 (Tex.Cr.App.1983); Goswick v. State, 656 S.W.2d 68 (Tex.Cr.App.1983); Coberly v. State, 644 S.W.2d 734 (Tex.Cr.App.1983).

There, of course, is no question that a prosecutor may argue as a deduction from the evidence that intent to commit theft can be inferred from entry at nighttime without consent.

A number of cases have held that an entry made without consent in the nighttime is “presumed” to have been made with intent to commit theft. See Mauldin v. State, 628 S.W.2d 793, 795 (Tex.Cr.App.1982); Solis v. State, 589 S.W.2d 444, 446 (Tex.Cr.App.1979); Moss v. State, 574 S.W.2d 542, 544 (Tex.Cr.App.1978); Clark v. State, 543 S.W.2d 125, 128 (Tex.Cr.App.1970), and cases there cited. See also Williams v. State, 506 S.W.2d 868 (Tex.Cr.App.1974); Clayton v. State, 493 S.W.2d 526 (Tex.Cr.App.1973); Roberts v. State, 375 S.W.2d 303 (Tex.Cr.App.1964); Alexander v. State, 20 S.W. 756 (Tex.Cr.App.1892). Although there may be some question as to whether this was a presumption or simply a permissible inference most of the cases applying the principle have done so in review of questions of sufficiency of the evidence. At the trial level the principle may come into play upon presentation of a motion for an instructed verdict or a hearing on a motion for new trial. Thus it has been a trial vehicle as well as an appellate vehicle to review the sufficiency of evidence. Cf. Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Cr.App.1985).¹

The evidentiary “presumption” or permissive inference was never intended to relieve the prosecution of proving every element of a crime beyond a reasonable doubt or to be used in a jury charge for that purpose. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985).

Only recently in Browning v. State, 720 S.W.2d 504 (Tex.Cr.App.1986), this Court held that instructing a jury on such “presumption” or inference was error and wrote:

“... In any given case the jury could make any number of reasonable inferences. But when the trial court, the only source of the law the jury has, picks out only one such inference and instructs the jury that that one, though rebuttable, is a presumption provided by law, the court gives the force of law to that one possible inference. In fact neither statute nor caselaw provides such a ‘presumption’ at the trial level. Instructing the jury that it does constitutes, in effect, a comment on the weight of the evidence. We do not hold that the jury may not make such an inference, nor that an appellate court in reviewing the sufficiency of the evidence may not assume that the jury made such a reasonable inference. The error lies in instructing the jury that they may apply such an inference.” (Footnote omitted.) Also see Mercado v. State, 718 S.W.2d 291 (Tex.Cr.App.1986).

- There can be no question that the trial judge erred in overruling appellant’s objection and charging on the “presumption” or inference to which V.T.C.A., Penal Code, § 2.05, was not applicable by its very terms and which was not authorized by case law. The charge was also an improper comment on the weight of the evidence. We thus agree with the Court of Appeals as to the error in the charge. We must now determine whether the appellant has suffered “some harm” as a result of the objected to error in the charge. Almanza v. State, supra.2 The Court of Appeals did not expressly apply Almanza but cited Shockley as the basis for reversal. Shockley did discuss and apply Almanza.

Stuart Harris, owner of the Orchard Hill Pharmacy in Garland, testified that normal store hours were from 7 a.m. to 10:30 p.m. On October 27, 1982, he secured the store at the normal closing time and checked the locks. After midnight on October 28,1982, he was summoned to the building which had been broken into and entered. Harris stated he had not given Daniel Shockley or the appellant LaPoint permission to break and enter his store. Harris did not testify that anything was taken from the store. On October 28 one of his employees found a walkie-talkie in the hardware section of the store which did not belong to the store. It was turned over to the police.

The record also shows that shortly after 12:00 a.m., Thursday, October 28, 1982, Garland Police Officer Bill Connaster was patrolling behind the Orchard Hills Shopping Center with his squad car lights off. As he pulled his vehicle from the back to the front of the strip shopping center, Con-naster noticed a blue Ford van pull parallel to the walkway in front of the Orchard Hills Pharmacy. He observed a male, who was later identified as Daniel Gaston Shockley, exit the passenger side of the van, proceed to one of the doors at the front of the pharmacy, stoop slightly as if looking at the door handle, dip his shoulders with his hands forward, and then walk through the door. Because of the time of night, the reduced lighting inside the store, the absence of cars in the parking lot, the fact that Shockley was not carrying cleaning equipment and because of his experience as a police officer, Connaster believed a burglary was occurring. He called for backup. As the van pulled away, he followed, glancing into the pharmacy as he passed, seeing Shockley inside. After the van pulled from the shopping center parking lot onto West Kingsley Road, Connaster turned on his headlights and flashing lights, whereupon the vehicle turned back into the parking lot and stopped. Connaster testified he had not observed the driver commit any violation of the law. The officer approached the driver’s side of the van and asked appellant, the driver of the van, for his driver’s license. Appellant indicated he had none. Appellant was arrested.

In the meantime the backup officer, Steve Flanagan, arrived at the pharmacy. With his pistol drawn, the officer entered through a door from which the lock cylinder fell into his hand. Shortly thereafter he observed Shockley crouched down behind some shelves. Shockley was told to “freeze,” whereupon he uttered, “I stayed in the building after it closed. I was looking for a pack of cigarettes and couldn’t find anybody.” Shockley was arrested.

Numerous items which were later introduced into evidence at the trial were seized from inside both the van ³ and the pharmacy. Significantly these included a pair of cutting pliers (which were retrieved from the van) whose bits were scientifically matched to the marks found on the lock cylinder which had been removed from the front door, a set of binoculars, a thermos, gloves, a police call radio directory which had marks next to the frequency of the Garland and several Dallas police stations, radio receiving crystals which matched the aforementioned frequencies, a radio scanner which accommodated the crystals, and numerous tools including some which had been filed, apparently to prevent scientific matching.

Appellant did not offer any evidence.

Since we have held that there is error in the jury charge and there was a timely objection to the charge on presumption, we must determine whether “some harm to the accused” has resulted from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985). The degree of harm “must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.

Appellant’s guilt as a party to the offense was dependent upon the jury finding that Shockley had committed the alleged burglary with the intent to commit theft. By cross-examination appellant established that the parking lot of the shopping complex was lighted until 2 a.m., that the pharmacy was lighted outside, and at least, in part, on the inside⁴ at the time of the alleged offense, that a view of the interior was partially blocked by displays and merchandise and a person would have difficulty telling the pharmacy was not open for business. Further, it was shown that when Shockley entered he merely stooped slightly and walked through the door. There was no showing Shockley’s fingerprints were on any of the tools, and he was not found in possession of any stolen property. Appellant asserted he was guilty of no offense and contested the issue that Shockley had the intent to commit theft. This was his argument to the jury. It is true that the prosecutor never referred to the presumption charge in his jury argument but did argue that given the time of the entry Shockley’s intent must have been to commit theft. Assaying the degree of harm as directed by Almanza, we conclude, although it is a close question, that the giving of the jury charge on the presumption of intent to commit theft was harmful error “calculated to injure the rights” of the appellant. Article 36.19, V.A.C.C.P. Almanza v. State, supra.

The judgment of the Court of Appeals is affirmed.

1 . Language in Aguilar that the inference of intent to commit theft arising from a non-consen-tual nighttime entry is intended solely for appellate consideration of sufficiency questions is too restrictive.

2 . In Almanza, we set out the standard of review for reversible error when a charge was properly objected-to, and then indicated to reviewing courts from what sources in the record before it, that they might make their determination of whether or not- the error was reversible error. We said, in part:

"... If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of defendant,' which means no more than there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objections will call for reversal as long as the error is not harmless....

"... the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985).

3 . Officer Connaster testified that after he learned over the police radio that Shockley had been arrested inside the store, he searched the van appellant had been driving.

4 . Harris, the owner, testified at one point about one-fourth of the lights were on, but later stated this was only in the hardware section and that the lighting was reduced to about one-tenth at closing time. Another officer estimated about half the inside lights were on at the time.