McCardell v. State

557 S.W.2d 289, 1977 Tex. Crim. App. LEXIS 1262

• Court: Court of Criminal Appeals of Texas
• Decided: October 19, 1977
• Docket: 53627
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

Joseph I. McCardell was convicted for burglary of a building. Punishment, enhanced under V.T.C.A., Penal Code, Section 12.42(d), was assessed at life. On appeal McCardell contends that the court should have charged on the defense of alibi and on a lesser included offense of criminal trespass; that V.T.C.A., Penal Code, Section 12.42, is unconstitutional; and that the “pen packets” of his prior convictions were improperly introduced. We overrule these contentions and affirm the conviction.

At about 11:15 p. m., August 21, 1975, police officers responded to a silent alarm from, and arrived within two or three minutes at, the Fact-O-Bake Paint and Body Shop in Galveston. They found that a large panel of the back door had been knocked out. Robert McCardell was found hiding on the floorboard of a car. Joseph McCardell, appellant, was on top of the spray room, about three and one-half feet below the roof of the building. He was covered with screening. The building had been locked by Rudy Aguilar, the owner, and no one was given permission to enter.

Herbert Lee Smith, called as a defense witness, testified that Joseph McCardell was at Herb’s Ghetto Inn at about 11:00 o’clock on the night in question when Robert McCardell called Joseph. After they talked, Joseph said that he was going to get his brother.

Robert McCardell testified that he committed and had been convicted for, and that Joseph had nothing to do with, the present offense. He related that he called Joseph at Herb’s Ghetto Inn and told him that he was working late at the paint and body shop for Rudy Aguilar. At Robert’s request, Joseph came for him. When Joseph arrived, Robert let him in the front door. Joseph asked: “Where was Rudy at? I told him that Rudy had gone across the street to the La Rumba to get a sandwich and told me to close up the place.” At about this time the officers arrived and Robert said that he “. . . had broke in the place” and told Joseph “to hide because the laws was coming in.” They both hid and were later discovered and arrested. The jury chose not to believe Robert’s testimony.

The request for the charge on alibi was properly denied. All of the testimony shows that appellant was in the burglarized building while the burglary was in progress. The testimony of Herbert Smith that appellant was at the inn and received a call from Robert does not raise the issue of alibi.

Appellant contends that the court erred in refusing to charge on a lesser included offense of criminal trespass. He relies upon Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976), which held that in a burglary prosecution the defendant was entitled to such a charge after he had testified that he entered the building without the consent of the owner but for an innocent purpose. That case is not in point.

All of the defensive testimony shows that appellant committed no crime at all because he was told that Robert was working for the shop owner in the building and Robert invited appellant to enter. There was nothing according to Robert’s testimony that put appellant on notice that he did not have the effective consent of the owner to enter. In short, the proof shows that appellant committed the offense of burglary. He was guilty or not guilty of that offense.

In McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), this Court held: “. . .a charge on the lesser [included offense] is not required unless there is testimony raising such issue that appellant, if guilty, is guilty only of the lesser offense.” See 4 Branch’s Ann.P.C.2d, Section 1889, page 219. And see Torres v. State, 493 S.W.2d 874 (Tex.Cr.App.1973).

There is no testimony in the present case that would make appellant guilty of only the crime of trespass. No error is shown.

Appellant contends that V.T.C.A., Penal Code, Section 12.42, providing for enhancement of penalty where one has been previously convicted, is unconstitutional. That section is substantially the same as Article 63 of the former penal code. The same contention has been raised and overruled many times before. See Schultz v. State, 510 S.W.2d 940 (Tex.Cr.App.1974), and Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). It is again overruled.

Lastly, appellant urges that the court erred in admitting into evidence prison records of prior convictions not alleged in the indictment for enhancement because they showed extraneous offenses. Article 37.07, V.A.C.C.P., provides that such prior convictions are admissible even though they are not alleged in the indictment. No evidence of extraneous offenses other than those shown by the prior convictions was admitted. No error is shown.

The judgment is affirmed.