Lopez v. State

632 S.W.2d 709, 1982 Tex. App. LEXIS 4376
CourtCourt of Appeals of Texas
DecidedApril 29, 1982
DocketNo. 2-81-132-CR
StatusPublished
Cited by5 cases

This text of 632 S.W.2d 709 (Lopez 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
Lopez v. State, 632 S.W.2d 709, 1982 Tex. App. LEXIS 4376 (Tex. Ct. App. 1982).

Opinion

OPINION

RICHARD L. BROWN, Justice.

This is an appeal from a conviction of burglary of a habitation. Punishment was assessed by the jury at twenty years confinement in the Texas Department of Corrections. »

We affirm.

Appellant has asserted twelve grounds of error on appeal. Grounds of error one, two, three and seven relate to appellant’s motion to quash the indictment.

The indictment in this cause alleges:

JOE LOPEZ JR hereinafter called Defendant, in the County of Tarrant and State aforesaid, on or about the 30th day of JULY 1979, did THEN AND THERE INTENTIONALLY AND KNOWINGLY, WITHOUT THE EFFECTIVE CONSENT OF E. D. NEEDHAM, THE OWNER THEREOF, ENTER A HABITATION AND DID ATTEMPT TO COMMIT AND COMMIT THEFT.

The specific assertions of error are that: 1) the indictment fails to allege how the entry was made; 2) the indictment fails to specify the type of owner upon which the State based its case; 3) the indictment fails to specify the type of habitation upon which the State based its case; and 4) the indictment fails to state the offense it alleges was attempted. There is no merit in any of these grounds of error.

Grounds of error one, two and three are disposed of by Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973). That case involved a conviction of burglary of a habitation, and was returned under a statute antecedent to V.T.C.A., Penal Article 30.-02(a). In disposing of the asserted errors in the indictment in that case, not unlike the ones before us in this case, the Texas Court of Criminal Appeals, idem at page 833, held:

The appellant argues the indictment should allege: ‘What type of house was involved; where such house was located; and where any alleged force was applied; where or in what manner any alleged breaking or entering occurred; what was broken; what was entered; how it was entered; the nature and type of any personal property; the value, if any, of any personal property; and when any alleged burglary occurred, that is, whether it was in the daytime or in the nighttime.’ These are matters of evidence and need not be alleged. The allegations of the indictment are sufficient.

See, also, Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1980).

Ground of error seven concerns the failure of the indictment to state the offense it alleges was attempted. A clear reading of the indictment reveals that the attempt element of the indictment related to theft, not some unspecified felony. Grounds of error one, two, three and seven are overruled.

By ground of error four, appellant complains that the trial court erred in restricting the direct examination of appellant’s wife during the punishment phase of the trial regarding the appellant’s character as a father. We disagree.

This portion of the record on appeal is pertinent to this ground of error:

BY MR. MOLINA (Attorney for the Appellant):
Q. Y’all have any children?
A. Two.
Q. How old is the oldest (sic) child?
A. Three.
Q. And what's that child’s name?
A. Danny Varela.
Q. Danny Varela is your child — Joe’s not the father is he?
A. No, he’s not.
Q. Has—
A. He’s raised him, you know, as his own son.
Q. Has Joe accepted him as his own son?
A. Yes.
MR. MACKEY (The Prosecutor): Your Honor, we’re going to object at this time as to the relevancy to this line of questioning.
[711]*711THE COURT: Sustained.
Q. You say you have another child. How old is that child?
MR. MACKEY: Same objection, Your Honor.
THE COURT: I’ll permit her to answer how many children she has. Go ahead.

At no time was appellant asked whether he was providing support for his dependents, which would have been relevant on the issue of eligibility for probation. There is no indication in the record on appeal that he was denied the right to elicit testimony of this nature. Ground of error four is overruled.

By his grounds of error five and six, appellant urges that his conviction is invalid in that the trial court’s instructions to the jury: 1) authorized it to act on either of two methods of comitting burglary when only one method was alleged in the indictment; and 2) were fatally defective in that such instructions failed to define the law under which appellant was prosecuted. We disagree.

No objections were made to the charge. Thus we must determine whether the charge, as given, contained a fundamental error. Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975).

The pertinent provisions of the court’s charge are as follows:

The defendant, Joe Lopez, Jr., stands charged by indictment with the offense of burglary of a habitation with intent to commit theft and did commit theft, alleged to have been committed in Tarrant County, Texas, on or about the 30th day of July, 1979. The defendant has pleaded not guilty.
Our law provides that a person commits an offense if, without the effective consent of the owner, he enters a habitation with intent to commit a felony or any theft.
In this case, the indictment having charged that the burglarious entry, if any, was made with intent to commit the crime of theft, before you would be warranted in finding the defendant guilty, you must be satisfied from the evidence beyond a reasonable doubt that the entry, if any, was so made with intent to commit the specific crime of theft.
Now if you find from the evidence beyond a reasonable doubt that in Tar-rant County, Texas, on or about the 30th day of July, 1979, the defendant, Joe Lopez, Jr., did then and there intentionally or knowingly, without the effective consent of E. D. Needham, the owner thereof, enter a habitation and did attempt to commit theft or commit theft, you will find the defendant guilty.

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632 S.W.2d 709, 1982 Tex. App. LEXIS 4376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-state-texapp-1982.