Perez v. State

695 S.W.2d 51, 1985 Tex. App. LEXIS 11643
CourtCourt of Appeals of Texas
DecidedMay 30, 1985
Docket13-84-230-CR
StatusPublished
Cited by11 cases

This text of 695 S.W.2d 51 (Perez 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
Perez v. State, 695 S.W.2d 51, 1985 Tex. App. LEXIS 11643 (Tex. Ct. App. 1985).

Opinions

OPINION

PER CURIAM.

This is an appeal from a conviction by a jury of attempted burglary. The appellant plead true to the enhancement allegations [52]*52asserted in the indictment and was sentenced by the trial court to twenty-five years in the Texas Department of Corrections.

Appellant raises three grounds of error on appeal. He asserts that the evidence is insufficient to support the factual allegation set forth in the indictment that he used a metal rod to pry out and remove an air conditioning unit to gain entry; that the evidence failed to establish an act which amounted to more than mere preparation that tended but failed to effect the commission of the offense; and that the evidence as a whole was insufficient to support a conviction. The state has not favored us with a brief in reply to appellant’s grounds of error.

The indictment alleged, in part, that the appellant:

on or about the 22nd day of February A.D. 1984, and before the presentment of this indictment, in the County and State aforesaid, did then and there unlawfully with the specific intent to commit burglary, attempt to enter a building without the effective consent of Jacob Perez, Jr., the owner, and with the intent to commit theft by doing the act of using a metal rod to pry out and remove an air conditioning unit to gain entry, an act which amounted to more than mere preparation that tended but failed to effect the commission of said offense;

Appellant’s first ground of error is that there is a fatal variance between the overt acts alleged in the indictment and the evidence. The indictment alleged that the defendant, intended to commit burglary “... by doing the act of using a metal rod to pry out and remove an air conditioning unit to gain entry, ... an act which amounted to more than mere preparation that tended but failed to effect the commission of said offense.” [Emphasis Added.] The appellant argues that as there was no evidence that the air conditioning unit was pried out and removed, a fatal variance exists and the conviction cannot stand.

The elements of a criminal attempt are: 1) a person 2) with specific intent to commit an offense (burglary) 3) does an act amounting to more than mere preparation 4) that tends but fails to effect the commission of the offense intended. Windham v. State, 638 S.W.2d 486 (Tex.Crim.App.1982). The instant indictment properly alleges all elements of the offense. After reciting the “act” (using a metal rod to pry out and remove an air conditioning unit), the indictment also stated that the act amounted to more than mere preparation that tended but failed to effect the commission of the offense.

The words “to pry out and remove” are merely statements of purpose or intention; that is, to explain why the appellant was using the metal rod.

The case cited by appellant is distinguishable. In Windham v. State, supra, an attempted murder case, the indictment alleged the act that amounted to more than mere preparation to be “shooting at her with a gun”; as there was no evidence of the gun discharging, there was a fatal variance between allegation and proof. In the instant case, there is no dispute that the appellant was using a metal rod and was prying on the bracket of an air conditioner unit when spotted by the police officer.

Appellant’s first ground of error is overruled.

Appellant’s second and third grounds of error concern the sufficiency of the evidence to support the conviction. The standard for review in both direct and circumstantial evidence cases is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983). In circumstantial evidence eases, if the evidence supports an inference other than the guilt of the defendant, a finding of guilt beyond a reasonable doubt is not a rational finding. Wilson, 654 S.W.2d at 472 (opinion on State’s motion for rehearing).

The evidence was that on February 22, 1984, Arnold Acunia, while on patrol for the Kingsville Police Department, was dis[53]*53patched to a building that housed a liquor store. Officer Acunia testified that he noticed a man standing at the corner of the building, using a “long metal type” rod to pry on some brackets that supported an air conditioning unit that was built into the rear wall of the building. Acunia claimed that the man, who he later identified as appellant (Perez), was standing about 50 yards from him when he made his observations. According to Acunia, Perez stopped what he was doing when a police backup unit arrived at the front of the store. Acu-nia ordered appellant to stop as he walked toward him and past him at a fast pace. The officer testified that he hit Perez on the shoulder with a flashlight, whereupon he began to run. Officer Acunia caught appellant at one point, but he slipped out of his shirt and jacket during the pursuit and got away. The jacket, which was retrieved by police, contained medicine bottles which bore appellant’s name and led to his later apprehension. A bed rail and a wooden stick that were recovered at the scene had paint marks that matched the paint on the building.

It is undisputed that the air conditioning unit was never actually removed from the wall and the distance from the ground to the unit was five to six feet. There was no ladder or box near the scene to aid defendant in his entry nor was appellant carrying a bag or sack.' No evidence was introduced that the air conditioner could have been removed by the defendant if he had not been interrupted by the police, nor was there evidence that entry could have been effectuated had the air conditioner been removed. Jacob Perez, owner of the liquor store, testified that he did not give anyone permission to enter the liquor store or to pry on the air conditioning unit. The liquor store had two doors and several windows through which entry could be accomplished.

In order to convict appellant of attempted burglary, the State had to prove, beyond a reasonable doubt, that the appellant, with the requisite intent, performed an act amounting to more than mere preparation in order to obtain entry into the liquor store, which tended, but failed to effect the commission of a burglary. Flournoy v. State, 668 S.W.2d 380 (Tex.Crim.App.1984).

In applying the foregoing standard of review in making our determination on the sufficiency of the evidence, we must follow the dictates of the Texas Court of Criminal Appeals in Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983), in which the Court wrote:

It follows that circumstantial evidence should not be tested by an ultimate “standard for review” different from direct evidence; the standard in both kinds of cases is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Accord Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981).

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Perez v. State
695 S.W.2d 51 (Court of Appeals of Texas, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
695 S.W.2d 51, 1985 Tex. App. LEXIS 11643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-state-texapp-1985.