Philip A. Deshais, III v. State

Deshais v. State

IN THE

TENTH COURT OF APPEALS

No. 10-93-129-CR

     PHILIP A. DESHAIS, III,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 230th District Court

Harris County, Texas

Trial Court # 625,590

O P I N I O N

      This is an appeal by Appellant Deshais from his conviction for attempted burglary of a building, for which he was assessed ten years, probated, plus a $200 fine.

      Appellant was indicted for attempted burglary of a building, enhanced by a prior conviction for burglary. In a bench trial, the court found Appellant guilty, the allegation of a prior felony conviction true, and assessed his punishment at ten years in prison, probated for ten years, and a $200 fine.

      Deputy Dinnick testified that he and two other deputies received a silent alarm call to Furrow's Lumber Yard at 2:00 A.M. on February 7, 1992. Deputy Dinnick saw two men at the back of the store moving boxes. The three deputies moved toward the men. The men saw the deputies and ran away but not before Dinnick got a good look at one of their faces. Dinnick later identified Appellant from a photo spread.

      William Russell Anderson, the store manager for Furrow's, testified that he went to the store in the early morning hours of February 7, 1992, after being notified of a burglary. The alarm had been set off by someone trying to open a door at the retail building and forcing it up several inches above the ground. The door had been completely shut when the alarm was set at 10:00 P.M. the night before. The burglars had placed two of Furrow's ladders against the back fence and three boxes containing a sink and two paint sprayers were against the outside of the fence. Appellant's fingerprints were on one of the paint sprayer boxes.

      Appellant appeals on two points of error.

      Point one asserts: "The evidence was insufficient to support Appellant's conviction, where the State failed to prove that the person alleged in the indictment was the owner of the premises at the time of the attempted burglary."

      The indictment alleged the complainant's name was "Rusty Anderson," but the complainant testified that his name was "William Russell Anderson." There is an abundance of testimony showing that "William Russell Anderson," who testified, is the same person as "Rusty Anderson," named as complainant in the indictment. In fact, the State called "Rusty Anderson" to testify." "Rusty Anderson" then stated that his name was "William Russell Anderson." Appellant even testified that he had been a customer of Furrow's and that the manager of Furrow's was known to him as "Rusty Anderson."

      In reviewing the sufficiency of the evidence, the appellate court must view the evidence in the light most favorable to the verdict. Villalon v. State, (Tex. Crim. App.) 791 S.W.2d 130, 132; Houston v. State, (Tex. Crim. App.) 663 S.W.2d 455, 456. The test requires the appellate court to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, (Tex. Crim. App.) 769 S.W.2d 234, 239.

            Article 21.07 of the Texas Code of Criminal Procedure provides that "when a person is known by two or more names, it shall be sufficient to state either name." And the person need not be commonly known by the name alleged in the indictment. Blankenship v. State, (Tex. Crim. App.) 785 S.W.2d 158, 160.

      Point one is without merit and is overruled.

      Point two asserts: "The evidence was insufficient to support Appellant's conviction for attempted burglary, when the State failed to show that the structure that Appellant attempted to enter was a building as defined by law."

      The Furrow's complex consisted of three structures, two of which are in the back and are open warehouse structures used for storing lumber. The front structure is a building equipped with an alarm. The record shows that it was this structure into which entry was attempted. The store alarm cannot be set if any of the doors are open. The alarm went off because someone had partially opened one of the doors. Store manager Anderson testified that the door to the storage room had been completely shut when the alarm was set the night before and that the room can be accessed only by raising the door. Since that portion of the building that Appellant attempted to burglarize was an enclosed structure, the evidence was sufficient to support the trial court's verdict. Texas Penal Code section 30.02 provides that a person commits an offense by entering any portion of a building not open to the public.

      Under the authorities cited under point one, we hold that the evidence was sufficient for the trial court to find that the structure Appellant attempted to enter was a building as defined by law.

      Point two is overruled. The judgment of the trial court is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Thomas,

      Justice Cummings, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 13, 1994

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