Smith v. State

857 S.W.2d 65, 1993 Tex. App. LEXIS 1229, 1993 WL 134337
Court of Appeals of Texas·Decided April 28, 1993·No. No. 12-91-00008-CR·Published·Cited by 2 cases

Opinion

HOLCOMB, Justice.

This is an appeal wherein Appellant entered his plea of guilty to the felony offense of burglary of a habitation. The jury found him guilty and assessed punishment at seventy-five (75) years imprisonment. We will affirm.

The evidence, when viewed in the light most favorable to the jury’s verdict on punishment, is as follows. Appellant had four previous burglary convictions. Complainant testified that Appellant had appeared at the complainant’s door two days prior to the burglary, asking whether a vehicle in the yard was for sale, even though there was no sign on it or any indication that the vehicle might be for sale. Around 2:00 a.m. on the date of the burglary, the complainant and her three-year-old child were in one part of this home when she became aware that someone had broken into the house and was burglarizing it. They then went under a bed, taking the telephone with them, and called 911. She was requested to stay on the line while officers were enroute to answer the call. The officers responding to the call testified that they found items which had been taken stacked outside the house. When they en[67]*67tered the house, officers discovered Appellant and his younger brother carrying a stereo system which was too large for one person to carry. Appellant at first started to run, but stopped when ordered by the police. He had socks on his hands so that he would not leave fingerprints. Further testimony revealed that he had parked his vehicle a distance away from the victim’s house he was burglarizing. Appellant and his brother were placed under arrest and charged with burglary.

By his first point of error, Appellant complains of the trial court’s action in allowing the State to ask Appellant if he had been arrested and charged with a burglary which had not resulted in a conviction. The record reflects that during cross-examination, the State’s prosecutor, after questioning Appellant about prior burglary convictions and obtaining an admission that he had been convicted of burglary four times during 1969 and 1970, asked Appellant:

Q: Sir, after that time isn’t it true that you were arrested in Dallas and charged with burglary, is that correct?
A: No, I don’t think so.
Q: And plead guilty to criminal trespass?

Appellant’s attorney objected. During a bench conference, the trial judge asked the State if a conviction had resulted from the Dallas arrest. After the State responded affirmatively, the court allowed him to continue with the following question:

Q: Sir, that was 1976 in Dallas, is that correct?
A: What was this again?
Q: It was a burglary reduced to criminal trespass?
A: No, it was attempted—

Upon another objection by Appellant’s attorney, the judge retired the jury. Appellant’s objection was overruled since Appellant had been arrested for burglary, even though that charge had later been reduced to criminal trespass. When Appellant was specifically asked whether he had been convicted of criminal trespass in Dallas County in 1976, he responded that he did not know.

After both sides rested, the jury was instructed by the court as follows:

THE COURT: Ladies and gentlemen, I’m going to instruct you to disregard any questions concerning any conviction for — what was it, criminal mischief?
MR. MCCLAIN: [State’s attorney] Trespass.
THE COURT: Trespass in Dallas County or any conviction for theft or possession of drugs in Smith County. There is no proof to support anything, so you’ll disregard the questions and not speculate on the answers.

Appellant argues that although the court instructed the jury to disregard questions concerning criminal trespass in Dallas County, there was no specific instruction given to the jury regarding the arrest for burglary in Dallas County. However, we find that both times the burglary was brought up in front of the jury, it was also mentioned that the charge had been reduced to criminal trespass. Since the burglary and the lesser charge of criminal trespass constituted only one charge, we hold that the trial court did not commit error by instructing the jury simply to disregard any questions concerning a criminal trespass in Dallas County. Tex.Code Crim. Proc.Ann. art. 37.07, § 3(a), provides in pertinent part that the “prior criminal record” of a defendant may be offered on the issue of sentencing after a finding of guilty. Article 37.07, sec. 3(a) defines “prior criminal record” as “a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.” Under these circumstances, the instruction to the jury to disregard was sufficient. Appellant’s first point of error is overruled.

Appellant’s second point of error asserts that the trial court erred in denying his request for a charge allowing the jury to consider intoxication in mitigation of punishment. Appellant contends that his consumption of various alcoholic beverages prior to the commission of the burglary should have been included in the charge to [68]*68the jury for mitigation purposes. However, we hold that since Appellant’s previous drinking did not raise any evidence of temporary insanity, he was not entitled for the jury to be so instructed.

Appellant testified that on the date of the offense he began drinking gin, whiskey, wine, and beer from some time just before dark until around midnight. Appellant claimed he committed the offense because he was under the influence of alcohol and wasn’t thinking clearly. Since Appellant pled guilty to the offense charged, he was not claiming that his drinking was a defense to the crime. As a result of his plea, only the following sections regarding intoxication applied to his request.

(b) Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried.
(d) For purposes of this section ‘intoxication’ means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

Tex.Penal Code § 8.04(b) and (d). Insanity applies when the actor, at the time the conduct occurs, did not know that his conduct is wrong, as a result of severe mental disease or defect. Tex.Penal Code § 8.01.

Appellant claims that he has shown a “disturbance of mental capacity” because he was not shown to have committed a burglary or other felony offense for nineteen years prior to this burglary. However, Appellant testified under direct examination that he knew what he was doing. After being asked why he committed the burglary, and answering that he was under the influence and not thinking straight, the following occurred:

Q: You knew you were doing it, didn’t you?
A: Yeah, but I didn’t know — I didn’t know no one was at the house and I didn’t know that — I was under the impression that it belonged to Linda.

Free access — add to your briefcase to read the full text and ask questions with AI

Smith v. State, 857 S.W.2d 65, 1993 Tex. App. LEXIS 1229, 1993 WL 134337 (Tex. Ct. App. 1993).

857 S.W.2d 65 (Smith v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Scott v. State
162 S.W.3d 397 (Court of Appeals of Texas, 2005)
Christopher Scott v. State
Court of Appeals of Texas, 2005