Hobbs v. State , 2005 Tex. Crim. App. LEXIS 958 ( 2005 )

COCHRAN, J.,

filed a dissenting opinion, in which PRICE, J., joined.

I respectfully dissent to the majority’s resolution of this case of first impression. I agree with the majority that evading arrest may be a continuing offense and that a change in the manner of locomotion — from fleeing in a vehicle to fleeing on foot — does not thereby convert a single, continuous criminal act of evading arrest into separate crimes. However, that is not the determinative issue in assessing the sufficiency of evidence in this burglary prosecution. As I see it, the underlying legal issue that appellant presents (albeit inartfully)¹ is as follows: Was there legally sufficient evidence to prove that, at the moment appellant broke into Barbara Wal-drip’s woodshed, he had the intent to commit the crime of felony evading arrest? Felony evading arrest requires the use of a vehicle to escape arrest. Burglary, however, focuses upon the future intent of the defendant at the moment he crosses the threshold. It matters not whether he has committed a felony before arriving at the house or whether he is continuing to commit a felony at the time he arrives at the house. The focus is entirely upon the present mens rea of the intruder concerning his intended purpose in entering the house.

Therefore, I cannot understand how, unless there were a car within that woodshed, or at least nearby, a rational jury could determine that appellant’s intent in making a criminal entry into the habitation was to evade arrest by using a motor vehicle. There is ample evidence to support the inference that appellant entered Ms. Waldrip’s woodshed with the intent to hide from the pursuing police, but that is a misdemeanor evading arrest offense, not a felony. Therefore, I would reverse appellant’s conviction and forty-year sentence for burglary, although his forty-year sentence for the separate felony evading arrest conviction which was ordered to run concurrently with the burglary sentence would remain intact.²

In its burglary indictment, the State alleged that appellant entered Ms. Waldrip’s home (actually the woodshed attached to her home) with the intent to commit a felony, namely the felony offense of evading arrest with a vehicle. Burglary cannot be committed unless the felonious intent exists at the moment of the unlawful entry.³ But all of the evidence shows that appellant had a misdemeanor-ish intent— he was “on the lam” and hiding out to evade arrest. He exercised that intent by hiding in Ms. Waldrip’s woodshed. Felony evading arrest, however, requires an additional element — use of a vehicle while in flight.⁴ The fact that appellant had used a vehicle several hours earlier to evade arrest does not necessarily mean that he intended to use a vehicle to evade arrest after he entered Ms. Waldrip’s woodshed. The fact that evading arrest may be a continuing offense⁵ or that appellant may not have “completed” the offense of felony evading arrest with a vehicle is simply not determinative of his intent — his mens rea — at the brief shining moment that he entered Ms. Waldrip’s woodshed.⁶ Under the Texas burglary statute, the evidence must support a finding that appellant intended to commit a felony after he entered the woodshed.

Many states have followed the lead of the Model Penal Code and amended their burglary statutes such that an unlawful entry with the intent to commit any offense suffices to establish burglary.⁷ This may be a sound position because, as the Model Penal Code commentary notes, “an intrusion for any criminal purpose creates elements of alarm and danger to persons who may be present in a place where they should be entitled to freedom from intrusion.” ⁸ Further, broadening the burglary statute to include the intent to commit any criminal offense avoids the sometimes difficult problem of proof concerning exactly what kind or level of dime the intruder intended to commit after his unlawful entry.⁹

A comparison between legal outcomes under the Texas statute and the Model Code provision may be helpful. The facts in this case are strikingly similar to those set out in State v. Wallace,¹⁰ in which the Appellate Court of Connecticut held that there was sufficient evidence to prove that the defendant unlawfully entered an apartment with the intent “to escape from the pursuing police.”¹¹ Under Connecticut law, such an attempted escape constitutes the misdemeanor offense of interfering with a police officer.¹² Under Texas law, those same facts constitute the misdemeanor offense of evading arrest.¹³ There is one small, but crucial, distinction between the Connecticut and Texas burglary statutes. Connecticut defines burglary as an unlawful entry with the intent to commit any crime,¹⁴ while the Texas statute requires an unlawful entry with the intent to commit “a felony, theft, or an assault.”¹⁵ The defendant in Wallace, like appellant in this case, argued that the crime of interfering with a police officer (a.k.a. evading arrest) was complete before the moment he entered the victim’s apartment. That argument was rejected by the Connecticut Court of Appeals,¹⁶ just as it was properly rejected by the court of appeals and this Court in the present case. The issue in Wallace is the same as the issue in this case: What was the defendant’s intent at the moment he unlawfully entered the victim’s home? In both cases the intent was the same: to hide from or evade arrest by pursuing police. In Connecticut, however, the intent to commit any crime after entry of the house suffices — even a misdemean- or. In Texas, only the intent to commit a felony (or any theft or assault) suffices— not misdemeanor evading arrest. Thus, the two cases must be resolved differently because the two burglary . statutes are drafted differently.

In sum, I do not think that there was legally sufficient evidence to prove that, at the moment appellant broke into Barbara Waldrip’s woodshed, he had the intent to commit, after his entry, the felony offense of evading arrest by using a vehicle. Therefore, I respectfully dissent.

1 . Appellant filed a pro se P.D.R. but was appointed an attorney for purposes of briefing the merits of his P.D.R. issues.

2 . Hobbs v. State, No. 11-03-00082-CR, 2004 WL 350475, 2004 Tex.App. LEXIS 1796 (Tex. App.-Eastland 2004) (not designated for publication). Such a ruling would not preclude the State from pursuing any other appropriate charges stemming from this incident.

3 . See Conrad v. State, 154 Tex.Crim. 624, 626, 230 S.W.2d 225, 226 (1950) ("Since 1886, in the case of Harris v. State, 20 Tex.App. 652, it has been the consistent holding of this court that the intent to commit the felony or crime of theft, essentially necessary to constitute the crime of burglary, must exist at the time of and accompany the entry into the house”); Coleman v. State, 832 S.W.2d 409, 413 (Tex.App.-Houston [1st Dist.] 1992, pet ref d) ("The intent to commit a felony or a crime of theft must exist at the time of and accompany the entry into the habitation”); see generally, Rol-lin M. Perkins & Roland N. Boyce, Criminal Law 266 (3d ed.1982) (noting that "an intent to commit a mere trespass, or even a misdemeanor ... will not satisfy the common-law definition. Furthermore the intent must accompany both the breaking and the entry”); Wayne R. LaFave, Substantive Criminal Law § 21.1(e) at 219 (2d ed. 2003) ("The intent must be to commit a felony within the dwelling house. Thus, it would not be a burglary to pass through a dwelling as a matter of choice on the way to an offense elsewhere, although it would be if the route was necessary to reach the object or situs of the intended crime”) (citing Robles v. State, 664 S.W.2d 91, 92-94 (Tex.Crim.App.1984) (stating that Texas burglary statute did not require that defendant intended to steal property from within the premises, only that “the unlawful entry was made for the purpose of furthering commission of the intended theft"; holding that defendant who entered banker's home with a gun and with intent to take banker to his bank to withdraw money for defendant was sufficient to prove burglary even though defendant did not intend that actual theft of money occur at the house; " 'gaining entry was critical to the success of appellant's plan to extort the money' ”)).

4 . Tex. Penal Code § 38.04(a)(1) & (2)(A).

5 . The majority cites State v. LeFebre, 130 N.M. 130, 19 P.3d 825, 830-32 (N.M.Ct.App.2001), for; the proposition that evading arrest, despite a change in the means of locomotion, may be a continuing offense. In LeFebre, the court of appeals agreed with the defendant's argument that double jeopardy principles prevented his conviction for two distinct crimes of evading arrest when he used a car to elude capture, then abandoned it, and fled on foot. Id. As the majority correctly points out in footnote four, double jeopardy principles would bar multiple convictions for evading arrest when the criminal act is one continuous course of conduct with only the means of locomotion changing. That, however, is not what is at issue in this case.

6 . Under both the Texas statute and the Model Penal Code, the State must prove that at the time the defendant entered unlawfully he intended to commit the underlying crime after he entered the premises. See Robles, 664 S.W.2d at 93-94; Model Penal Code § 221.1, Comment at 76-77 ("The word 'therein' in Subsection (1) of the Model Code provision [defining burglary] performs the same function by requiring that the intent to commit an offense after the entry has been effected”).

7 . Model Penal Code § 221.1 (1980); see La-Fave, § 21.1(e) at 220 & n. 119 (listing states).

8 . Model Penal Code § 221.1, Comment at 75. The homeowner's "perception of alarm and danger, moreover, will not depend on the particular purpose of the intruder. The fact that he may be contemplating a minor offense will be no solace to those who may reasonably fear the worst and who may react with measures that may well escalate the criminal purposes of the intruder.” Id.

9 . LaFave, § 21.1(e) at 220 n. 120.

10 . 56 Conn.App. 730, 745 A.2d 216 (2000).

11 . 56 Conn.App. at 739, 745 A.2d at 221.

12 . Conn. Gen.Stat. § 53a-167a(a) & (b) ("Interfering with an officer is a class A misdemeanor”).

13 . Tex Penal Code § 38.04(a) & (b).

14 . Conn. Gen Stat. § 53a-103(a) ("A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein”).

15 . Tex. Penal Code § 30.02(a)(1).

16 . The Connecticut court of appeals stated:

The defendant claims that in the present situation., an individual has completed all of the elements of interfering before attempting the unlawful entry and has no intent to commit a separate offense within the building entered. Thus, the defendant claims, a person who has committed all of the acts necessary to establish the offense prior to the unlawful entry does not, as a matter of law, enter with the intent to commit the crime therein. We are unpersuaded.

We conclude that the jury could logically infer that the defendant was attempting to avoid being discovered by the police when he ran through various backyards, hid in the bathtub of Xie’s apartment and attempted to break into homes. The unlawful entry into the apartment at 502 Orange Street and the attempted entry into the other residences, coupled with the intent to interfere with the police officers searching for him, supports the convictions of burglary and attempted burglary as found by the jury.

56 Conn.App. at 736 & 740, 745 A.2d at 220 & 222.