Rodriguez v. State

653 S.W.2d 331, 1983 Tex. App. LEXIS 4444
Court of Appeals of Texas·Decided May 4, 1983·No. No. 04-81-00069-CR·Published·Cited by 3 cases

Opinion

OPINION

ESQUIVEL, Justice.

Appellant was charged by indictment with the offense of burglary of a habitation and as a habitual offender in that he had been convicted of two prior felonies. The jury found appellant guilty of the offense as charged in the indictment and found that he had previously been convicted of two prior felonies. The court assessed his punishment at life imprisonment.

On the evening of January 30, 1978, the San Antonio Police Department received a report of a burglary in progress at 210 Nobhill. The responding officer was informed that there was a red car parked in front of the house with its motor running. Approaching the scene, the officer found such a car with no occupants and its motor running parked in front of 206 Nobhill, the house next door to 210. It was later determined the car belonged to appellant. Pro[333]*333ceeding on to 210, the officer shined his spotlight on the front of the house and saw the wood slat screen door open with two people standing behind it, one of whom was backing out the door. As the officer approached the house, the appellant and his wife walked from behind the door and met him on the driveway. While another officer detained the two, the responding officer entered the house and discovered the screen door was held ajar by a microwave oven resting on the front threshold. The officer testified that due to the weight, it would take two people to carry the oven.

The house had been entered by jimmying the front lock, but the instrument of entry was never found. The locking security chain was broken off with a crowbar kept just inside the front door, but fingerprints were neither found on the bar, the microwave nor the door handle. The two suspects were not wearing gloves at the time of their arrest.

Appellant alleges in his first two grounds of error that the trial court erred in failing to instruct a verdict at the end of the State’s case and that there was insufficient evidence to support the jury’s verdict. We must determine whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and excluded every reasonable hypothesis other than guilt. Girard v. State, 631 S.W.2d 162, 163 (Tex.Cr.App.1982). Although the evidence is circumstantial, we find it sufficient to connect appellant with the burglary. See Lawson v. State, 160 Tex.Cr.R. 559, 273 S.W.2d 75 (Tex.Cr.App.1954) (defendant captured outside of building that had been burglarized).

The evidence is overwhelming that someone entered the house at 210 Nobhill with the intent to commit theft. The front door had been forced open, the complaining witness did not give permission for anyone to enter, the microwave was in the kitchen when she left home, and the microwave oven was found halfway out the door, thus indicating someone had to enter the house for it to be halfway out the door. The principal question is whether appellant was the culprit.

Appellant’s reliance on Bledsoe v. State, 578 S.W.2d 123 (Tex.Cr.App.1979), is misplaced because in that case there was no evidence of an entry, while in the case at bar it is clear that someone entered the home.

Appellant also quotes the following from King v. State, 396 S.W.2d 409 (Tex.Cr.App.1965),

Where circumstantial evidence relied on by the prosecution is obviously weak, and where the record on appeal affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but also that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, the appellate court will treat the case as one showing reasonable doubt of the sufficiency of the evidence to support the conviction.

Id. at 410-411, and contends the rule is applicable to the case at bar. The other testimony appellant refers to is that of the next door neighbor who lived at 406 Nobhill and who told the responding police officers that appellant had first come to her house and asked for someone who did not live there. The officer testified at trial as to the conversation he had with the neighbor.

We find the rule of King v. State, supra, to be inapplicable herein. For it to apply, it must be shown that the testimony “would have cast additional light on the facts.... ” No such showing was made; the police officer testified to substantially what the neighbor said happened. Appellant’s first two grounds of error are overruled.

Appellant complains in his third ground of error of the failure of the trial court to give a requested circumstantial evidence charge. Appellant’s ground of error has been foreclosed by the Texas Court of Criminal Appeals in its recent decision in Hankins v. State, 646 S.W.2d 191, 198-99 [334]*334(Tex.Cr.App.1983) (en banc, on motion for rehearing). Appellant’s third ground of error is overruled.

The fourth and fifth grounds of error allege error in the trial court’s submission of an instruction on the law of parties. Tex.Penal Code Ann. §§ 7.01, 7.02 (Vernon 1974). Based on Todd v. State, 601 S.W.2d 718, 721 (Tex.Cr.App.1980), any error that may have occurred, however, was harmless in that the trial court made appellant’s guilt depend on a finding that he committed the offense “either acting alone or together with another as a person.... ” As the evidence of appellant’s conduct alone was sufficient to sustain the conviction, no charge on parties was required. McCuin v. State, 505 S.W.2d 827 (Tex.Cr.App.1974). Appellant’s fourth and fifth grounds of error are overruled.

Appellant’s sixth ground of error asserts a defect in the indictment for failing to give the general locality in the county of the building that was allegedly entered as required by Tex.Code Crim.Proc.Ann. art. 21.09 (Vernon Supp.1982-83). The indictment in pertinent part, states,

In the name and by authority of the State of Texas, the Grand Jury of Bexar County, State of Texas, duly organized, empaneled and sworn as such at the March term, A.D., 1978, of the 175th Judicial District Court of said County, in said Court, at said term, do present in and to said Court that in the County and State aforesaid, and anterior to the presentment of this indictment, and on or about the 30th day of January, A.D., 1978, Jesse Rodriguez did then and there, with the intent to commit theft, enter a habitation without the effective consent of Maxine Hall, the owner; ... [Emphasis added.]

Appellant’s argument is that the indictment must allege more than the county where the offense occurred. We disagree. In the recent case of Ward v. State, 642 S.W.2d 782 (Tex.Cr.App.1982), it was stated,

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Rodriguez v. State, 653 S.W.2d 331, 1983 Tex. App. LEXIS 4444 (Tex. Ct. App. 1983).

653 S.W.2d 331 (Rodriguez v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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