Guy Walter Roy v. State ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-93-00243-CR



Guy Walter Roy, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT NO. 92-265, HONORABLE FRED A. MOORE, JUDGE PRESIDING

A jury convicted Guy Walter Roy of the felony of burglary of a building. See Tex. Penal Code Ann. § 30.02(a)(1) (West 1994). ⁽¹⁾ Roy was sentenced to ninety-nine years as a repeat felony offender. See Tex. Penal Code Ann. § 12.42(b) (West 1994). We will affirm the conviction.

THE CONTROVERSY

The appeal involves the burglary of Durol Western, a manufacturing plant in Luling, Texas. In September 1992, Durol employed Joey Ygnacio as a night-time security guard for its manufacturing plant. As Ygnacio patrolled the facility on September 2, 1992, he noticed an unfamiliar blue Nova automobile in the parking lot. As he approached, Ygnacio saw Roy leaving the plant through a door that Ygnacio had previously found to be locked. Ygnacio noticed that Roy carried a red shop bag and a red rag and that he had a screwdriver in his back pocket. Roy claimed to be looking for a "Phillip," although Ygnacio knew no one by that name worked at the plant. After Roy left, Ygnacio discovered that the door from which Roy had left had been pried open and several tools had been piled by the door. The tools had not been there when Ygnacio previously checked the building. On this evidence Roy was convicted.

DISCUSSION

Roy brings two points of error challenging the legal sufficiency of the evidence based on the contention that the State failed to prove that (1) Roy entered the building without the effective consent of the owner and (2) Roy entered the building with the intent to commit theft. ⁽²⁾ The standard of review in legal sufficiency of the evidence challenge was set forth in Jackson v. Virginia, 443 U.S. 307 (1979). After viewing the evidence in a light most favorable to the prosecution, we must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 318-19. No longer will a reviewing court focus on the existence of "an outstanding reasonable hypothesis inconsistent with the guilt of the accused," nor will it act as a thirteenth juror. Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991).

Roy was charged with burglary of a building. The indictment alleged that Roy "intentionally and knowingly enter[ed] a building and a portion of a building not then open to the public without the effective consent of Joey Ygnacio, the owner thereof, with the intent to commit theft." Enhancement counts were also alleged. A person commits burglary if, "without the effective consent of the owner," he enters a building with the requisite intent to commit theft. Tex. Penal Code Ann. § 30.02(a)(1) (West 1994). Ownership of the building is an element of the offense which must be pled and proved. Alexander v. State, 753 S.W.2d 390, 392 (Tex. Crim. App. 1988). "Owner" is defined as "a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." Tex. Penal Code Ann. § 1.07(a)(35) (West 1994). The alleged owner must have "possession" meaning "actual care, custody, control, or management" of the property. Tex. Penal Code Ann. § 1.07(a)(39) (West 1994).

Ownership may be proved using the "greater right of possession" method. Alexander, 753 S.W.2d at 392-94. Thus, anyone "who has a greater right to the actual care, custody, control, or management of the property than the defendant can be alleged as the owner." Davis v. State, 783 S.W.2d 313, 316 (Tex. App.--Corpus Christi 1990, no pet.) (citing Alexander, 753 S.W.2d at 393-94).

A security guard hired to protect the premises has a greater right to possession than a stranger. Johnson v. State, 606 S.W.2d 894, 896 (Tex. Crim. App. 1980). However, the State cannot base its allegation of ownership upon proof of Ygnacio's position alone. It must show that Ygnacio exercised some degree of care, custody, control, or management. Freeman v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986). Roy asserted no right to possession of the Durol Western property.

The indictment alleged ownership of the building in Ygnacio, the security guard for Durol Western at the time of the burglary. Roy complains the State failed to prove that Ygnacio had actual care, custody, control or management of the building or tools stacked by the door. Ygnacio testified that his duties as a security guard included entering all parts of the facility and checking all doors to make sure they were locked. Durol Western instructed him to ascertain the license plate number and type of vehicle driven by any intruders found on the premises. At the time of the incident, Ygnacio was the only Durol Western employee permitted to be at the plant; Roy had no right to be there.

Ygnacio's testimony provided sufficient evidence in the record to enable a rational trier of fact to conclude that he had a greater right of possession of the building than Roy. The State is not required also to allege and prove that Ygnacio was the owner of the tools in order to convict Roy of burglary of a building. All that is required is that the defendant enter a building, without the effective consent of the owner, with the intent to commit a felony or theft. Tex. Penal Code Ann. § 30.02(a)(1) (West 1994). Roy's point of error is overruled.

CONCLUSION

In light of Roy's failure to present any argument whatsoever supporting his second stated point of error, it is waived. We overrule his first point of error and affirm the conviction.

John Powers, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: March 8, 1995

Do Not Publish

1. This offense took place before September 1, 1994, and is governed by the law in effect at the time the offense was committed. Penal Code, 73d Leg., R.S., ch. 900, § 1.18, 1993 Tex. Gen. Laws 3586, 3705. Because the code amendments effective September 1, 1994, have no relevance to this appeal, the current code is cited throughout this opinion for the sake of convenience.

2. The State argues that Roy waived any challenge to the sufficiency of the evidence by using inadequate language in his stated points of error. Point of error one provides: "The trial court erred in accepting the jury verdict of guilt, because the State failed to prove that appellant entered the building without the effective consent of the owner." Point of error two states: "The trial court erred in accepting the jury verdict of guilt, because the State failed to prove that appellant entered the building with the intent to commit theft."

"A point is sufficient if it directs the attention of the appellate court to the error about which complaint is made." Tex. R. App. P. 74(d). Consequently, we will address Roy's first point of error complaining that the State failed to prove that Roy entered the building without the effective consent of the owner, as that issue was briefed by defense counsel. However, counsel presents no argument, nor does he cite any authority regarding Roy's second stated point of error regarding intent; thus, this point of error has been waived.