Ragon v. State

506 S.W.2d 214, 1974 Tex. Crim. App. LEXIS 1527

• Court: Court of Criminal Appeals of Texas
• Decided: January 9, 1974
• Docket: 47232
• Status: Published

Opinions

OPINION

DALLY, Commissioner.

The conviction is for the felony offense of shoplifting; the punishment, three years’ imprisonment.

The sole ground of error presented is:

“The instruction to the jury does not require the jury to find the existence of a constituent element of the offense charged and is therefore fundamentally defective.”

The indictment alleges that the appellant was an “invitee and licensee” on the premises where the alleged shoplifting occurred. In instructing the jury the Court’s charge on this element of the offense authorized conviction of the appellant if he was either an “invitee or licensee.” The appellant’s argument that the Court should have charged on this element of the offense that the appellant was both an invitee and licensee on the premises is without merit. It was only necessary that the jury find the appellant was either an invitee or licensee on the premises. See Blankenship v. State, 390 S.W.2d 767 (Tex.Cr.App.1965).

The appellant has not briefed, but argued before the Court, that because Article 1436e, Vernon’s Ann.P.C. has been repealed the judgment of conviction should be reversed and the prosecution dismissed. Although the new Penal Code does repeal Article 1436e, V.A.P.C., the appellant’s argument is without merit in view of the savings provision of that Act which provides :

“Conduct constituting an offense under existing law that is repealed by this Act and that does not constitute an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act. However, a conviction existing on the effective date of this Act for conduct constituting an offense under laws repealed by this Act is valid and unaffected by this Act. For purposes of this section, 'conviction’ means a finding of guilt in a court of competent jurisdiction, and it is of no consequence that the conviction is not final.” Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 6(b). (Emphasis added.)

The appellant’s guilt was established by the jury’s verdict and evidenced by the judgment of the Court on October 18, 1972. The effective date of the new Penal Code was January 1, 1974.

The judgment is affirmed.

Opinion approved by the Court.