Edwards v. State ( 1977 )

OPINION

PHILLIPS, Judge.

The offense is burglary of a building; the punishment, five years.

Appellant challenges the sufficiency of the evidence to sustain the conviction.

James Williams, general manager of Continental Homes, testified that on January 6, 1976, he went to 804 Hollybrook in Long-view and found a front bedroom window had been broken out of the house and a dishwasher and range were missing. He also noted the wall between the garage and kitchen had been pushed in and there was “quite a bit of transmission fluid on the floor” of the garage. The following day witness Williams went to 800 Hollybrook and found a bathroom window had been broken out, a dishwasher and range had been taken, the wall paneling in the garage had dents in it, and there was transmission fluid on the garage floor.

Don Morgan, construction manager for Continental Homes at the time of the alleged offense, testified the two houses in question were newly constructed houses that were 99 percent complete except for a few “punch up” items. Witness Morgan stated he had care, control and management of the two houses and he had not given anyone permission to enter the houses and remove appliances or fixtures. He stated he had personally cleaned up the two garages and there were no oil smudges or damage to the walls at that time and the garage doors were always kept shut. Morgan further testified that on January 7 he went to the police department in Marshall and identified a dishwasher and range as the ones removed from 804 Hollybrook. Approximately two weeks later Morgan returned to Marshall where he recovered a dishwasher and range with serial numbers matching the appliances installed in 800 Hollybrook.

Larry Bennett, sales manager for Continental Homes, testified the two houses in question had been for sale since the first of December, 1975, and the houses were unlocked between 8:00 a.m. and 5:00 p.m. during the week and were open on week-ends. Witness Bennett stated there was not an attendant with the homes while they were unlocked.

Witness Claxton testified that on January 6 he and his wife were looking at houses and they entered the house at 800 Holly-brook. The front door was locked, but the back sliding door was open so they let themselves in. Witness Claxton stated he found a billfold on the kitchen floor four to seven feet from where an electric range and dishwasher would have been installed. The billfold contained a temporary driver’s license in the name of Lonnie Ray Edwards at an address in Marshall. The billfold was turned over to the Longview Police Department and an investigation of 800 Holly-brook on January 7 showed unlawful entry from the outside through a bathroom window, a dishwasher and range had been removed, the back sliding door was open, and one of the garage doors was unlocked.

Officer Shadowens of the Marshall Police Department stated during the early morning hours of January 6 he was having breakfast and observed a white Cadillac pull up to the office of a motel across the street. One of the two occupants of the car went into the office, tried to awaken the night clerk, left the office and went around to a side door and then reentered the ear and drove off. In the turtle hull Officer Shadowens observed some household appliances. He stated the car was of the same type and color as the car depicted in State’s Exhibit 3, a photograph of a Cadillac impounded later that day by the Marshall Police Department.

Wilburn Petty testified that when he returned to his house on January 6 appellant and Gary Jones were there and a white Cadillac belonging to Jones was parked in the driveway. Witness Petty said Jones tried to sell him a new dishwasher and range that were in the trunk of the Cadillac for $125.00. He said appellant was not present at that time.

James Murff, a patrolman with the Marshall Police Department, stated that on January 6 he drove by the home of Wilburn Petty and saw an old model white Cadillac backed up on the south side of the house with appliances in the opened trunk. After relaying this information to Detective Met-calf and running a license check on the vehicle, Officer Murff returned to Petty’s house.

Detective Metcalf of the Marshall Police Department testified as a result of a contact with Officer Murff he proceeded to Wilburn Petty’s residence where he discovered a light colored Cadillac with a stove and dishwasher in the back, backed into the southwest side of the house. While making an investigation, Detective Metcalf saw Gary Jones in the house and placed him under arrest on an outstanding warrant. Metcalf stated he did not see appellant at that time, but after Metcalf left the house appellant showed up in the front yard. Detective Metcalf testified he talked with Wilburn Petty and determined appellant and Jones had arrived in the Cadillac.¹ The Cadillac was then towed away and impounded and the appliances were removed. Metcalf stated it took more than one person to move each appliance. He further stated that he saw some type of oil leakage from the Cadillac. The serial numbers from the appliances were teletyped to local regions and an immediate response was received from Longview.

Lt. Puckett of the Longview Police Department stated he contacted the Marshall Police Department and looked at a car that had been impounded in Marshall. The car was a 1963 Cadillac that was leaking transmission fluid. He said the bumper on the car was 15 to 18 inches high and the marks on the walls of the two houses in Longview were 15 to 18 inches from the floor. The serial numbers from the appliances removed from the car matched the serial numbers on the billing invoices of the appliances installed at 804 Hollybrook.

Appellant testified at the punishment phase of the trial and denied having participated in the alleged burglary, although he stated he knew his cousin, Gary Jones, was selling stolen merchandise. Appellant admitted the billfold found in the house in Longview was his, but he said that he did not know how it got there and that the last time he saw his billfold was December 23, when he put it on Petty’s TV as was his habit when drinking with Petty.

The circumstances surrounding the instant burglary can be summarized as follows: two new houses on the same block were entered on or before January 6, 1976, and a dishwasher and range were removed from each house; it would have been difficult for one person acting alone to have removed the appliances; entry to each house was gained by breaking a window; oil and transmission fluid were found on the floor of each garage; the walls in the garages had been damaged and there were marks 15 to 18 inches from the floor; appellant’s wallet was found on the kitchen floor of 800 Hollybrook on January 6; appellant was found at the home of Wilburn Petty on January 6, and the appliances that had been removed from 804 Hollybrook were found in the trunk of the car in which appellant had arrived at Petty’s house; this car was leaking oil and transmission fluid and the bumper was 15 to 18 inches high.

In light of the unity of time and method of commission of the two burglaries, we find the recovery of appellant’s wallet on January 6 from the kitchen floor of 800 Hollybrook, together with the discovery on January 6 of the dishwasher and range removed from 804 Hollybrook in the trunk of the car which, from the evidence presented was shown to have been involved in the burglaries and in which appellant had recently been riding, to be sufficient to warrant the conclusion that appellant was present at the time of the alleged offense and participated in the burglary.² Viewing the evidence in the light most favorable to the verdict, we find the evidence sufficient to sustain the jury’s finding of guilt. See and compare Dunham v. State, Tex.Cr.App., 265 S.W.2d 819; Clark v. State, 493 S.W.2d 512; Clark v. State, Tex.Cr.App., 500 S.W.2d 507; Nelson v. State, Tex.Cr.App., 505 S.W.2d 271.

Appellant’s remaining contention is that the indictment is fundamentally defective because it does not state with sufficient particularity where in Gregg County the offense occurred.

The indictment alleges in part that:

“. . . on or about the 5th day of January, A.D. 1976, and anterior to the presentment of this Indictment, in the County and State aforesaid LONNIE RAY EDWARDS, hereinafter styled actor, did then and there, with intent to commit theft, enter a habitation, without the effective consent of Don Morgan, the owner thereof, against the peace and dignity of the State.”

No motion to quash the indictment was filed; however, appellant contends that the locality of the offense is a matter of substance and the State should have pleaded which building was the subject of the instant burglary.³

In Hodge v. State, Tex.Cr.App., 527 S.W.2d 289, the defendant contended an indictment for burglary of a habitation which did not specifically state where in Harris County the offense occurred was fundamentally defective and did not meet due process requirements and statutory requirements because it did not give him notice of the particular offense with which he was charged and it would not enable him to plead the judgment in bar of a subsequent prosecution for the same offense. In overruling this contention this Court held:

“[I]t is only necessary to allege the name of the county as the place where an offense was committed, (1) if the offense may be committed anywhere within the county, (2) the place where committed is not an element of the offense, and (3) the court in which the offense is tried has countywide jurisdiction.” Hodge at page 292.

In Nevarez v. State, Tex.Cr.App., 503 S.W.2d 767, involving a conviction for carrying a pistol on licensed premises, the accused had presented a timely written motion to quash the indictment on the basis that the place of licensed premises was an element of the offense, the name of the owner of the premises must be shown, and without further definition of the premises involved the accused could not properly prepare his defense and he would be unable to base a plea of jeopardy on the judgment. In finding the trial court did not err in overruling the motion to quash, we held when an offense may be committed anywhere in the county it is only necessary to allege that the offense occurred within the county, and when an offense may bé committed only in certain places designated by statute within the county, it is sufficient to allege the commission of the offense in the type or class of place without alleging the specific place within the type or class.

We find the indictment is not fundamentally defective because it does not specify with greater particularity the location of the offense.

The sentence recites the appellant “shall be confined in said Texas Department of Corrections, for 5 (five) years”. In compliance with Art. 42.09, V.A.C.C.P., the sentence is hereby reformed to reflect that appellant shall be confined for not less than two nor more than five years in the Department of Corrections.

As reformed, the judgment is affirmed.

1 . Witness Metcalf testified as follows:

“Q All right. And did you determine who had come up in the Cadillac? Did you talk to anybody out there at the scene?

A Yes, sir. Mr. Petty.

Q And who did you determine had come up in the Cadillac?

A Lonnie Edwards and Gary Jones.

Q And did you ask Gary Jones if that was his vehicle?

A Yes, sir.

* * * * * *

Q Mr. Metcalf, after you had arrested Gary Jones and after Mr. Edwards came up to the residence, did you have an opportunity to talk with both of them in each other’s presence?

A Yes, sir.

Q And were they both to where they could hear what you were saying to one or the other?

A Yes, sir.”

The dissenting opinion states appellant’s presence in the Cadillac was established by hearsay evidence. The record is not clear as to how Metcalf determined appellant had arrived at Petty’s house in the Cadillac. According to Petty’s trial testimony, Petty was not home when the car arrived and thus he could not have known whether appellant had been in the car. Although Metcalf could not have had personal knowledge of such fact, his testimony may not have been hearsay. The burden of showing this testimony was hearsay was on the appellant. Beal v. State, Tex.Cr.App., 520 S.W.2d 907.

2 . Bowen v. State, Tex.Cr.App., 460 S.W.2d 421, cited by the dissent, holds that fingerprints alone may be sufficient to convict if the evidence shows that they must necessarily have been made at the time of the burglary. That proposition is not applicable here, since the State does not rely solely on the presence of appellant’s wallet.

3 . Any question as to whether the instant conviction concerns the alleged burglary at 800 Hollybrook or 804 Hollybrook is not before us inasmuch as appellant did not at any time seek a clarification, secure an instruction or request an election by the State. See Hill v. State, Tex.Cr.App., 544 S.W.2d 411.