*1 of the cases. It be true in a Dwayne Elmer usually cannot be said that State would BLANKENSHIP, Appellant, pick the first offense.
Last, Texas, Appellee. it is the most consistent with the STATE objective Code “to insure the of the Penal No. 964-86. (A) safety through: the deterrent public Texas, Court of Criminal penalties pro- hereinafter influence of the En Banc. sec. 1.02. vided.” Y.T.C.A. Dec. be that in the rule then should ab- Rehearing On Nov. all sence of harm that vitiates convictions from one indictment when a de- obtained charged and convicted of
fendant more than one violation of Art. offense 21.24, V.A.C.C.P.,1 appellate court will (as the most offense deter-
affirm serious by and other mined the sentence relevant factors) and other convictions. dismiss the
Applying rule to the case this new sub would result in our affirmance of judice capital and dismissal murder conviction robbery aggravated the two convictions. is, Capital obviously, capital murder felo- ny penalty, which ultimate carries the by injection, appellant
death lethal which punishment. Aggravated was assessed as is, robbery by comparison, a less serious only degree in that a first felony carrying penalty a maximum of life $10,000 fine, imprisonment both received this case. Thus, rule, I proposed under this reach the majority opinion. result
same Additionally, point of nine- as to error teen, resulting I error believe that appellant’s denial of
from the trial court’s right impeach Henderson is harmless 81(b)(2), Tex.R.App.Proe. I
error under so point. reached on that concur result comments, join I With these additional majority opinion. remainder of that, advantage important appel- It in this it would not have had if it fol- to note (such lant was not the admission harmed of evi- lowed the law as the admission of details aggravated robbery dence relevant to the offenses), reversal well follow. offered counts. The evidence the State situation, regulating this the rules later admis- punishment would still have been admissible govern, except sion offenses will extraneous pursue even if the convic- State elected one, murder, capital as in a case such as this situation, In another tion on one offense. extraneous where evidence of offenses is admis- however, misjoining if the State of- insists sible. charging gains in a an fenses instrument *2 Corrections, conviction ment of in a by affirmed Court Blankenship v. opinion. published 715 S.W.2d (Tex.App. — Texarkana complained appeal, appellant On sup was insufficient the evidence that port failed the State his conviction because burglarized premises was prove the V.T.C.A., Penal defined 30.01(1). appellant’s granted We Code § discretionary because petition for review arguably in below we believe Jones v. conflict with State, 574 (Tex.Cr.App.1976),and v.Moss Tex.R.App. (Tex.Cr.App.1978). S.W.2d 542 Pro. Rule 200(c)(3). .
I. evening August theOn relaxing at Weeks was complainant, W.J. County. At Leesburg, Camp his home son, home Perry, his came p.m., 9:00 about and van his that a blue informed father parked open doors front telling After house Weeks owned. rent go get the license number Perry to van, sheriff strange Weeks called the house, rent went over to the and then yards from three hundred was about There, he a window saw that his home. had been unit which There was the conditioner smashed and the air gone. had been there was lying on a second air conditioner steps of the house. meanwhile, Perry, gotten in his just truck and arrived at the rent house time to see the van speed away. After getting plate number, Perry the license fol- down highway lowed van eleven and Wrecking into Hall’s the There he and Yard. “hollered” driver at each other. The pulled away and Perry van continued to the highway chase it down stopped by until it was police. Lantrip, Pittsburg, appellant. Michael trial, At was established that Cobb, Atty. M. Dist. and Charles Charles conditioner, air chair had taken an and a owned Weeks. a lawn Pleasant, Bailey, Atty., Asst. Dist. Mt. C. gasoline can from the rent house Austin, Huttash, Atty., State’s Robert At the time the offense the State. committed, used was by house was proper- Weeks store various items of ty. years, It had not been rented for two PETITION OPINION ON APPELLANT’S and the utilities were not connected. electricity, house meter, wired for but had DISCRETIONARY REVIEW FOR at its water turned off CLINTON, Judge. issue, backyard. meter in the fore, there- there is whether is sufficient evidence burglary of a Appellant was convicted of by appel- V.T.C.A., burglarized the structure pursuant show a “habitation” term is lant was punish 30.02. The assessed Code § by statute. eight years Depart ment at in the Texas supra at 133.2 We will now Blankenship, II. given for decision review that reason law de- Burglary is either a first or second reasoning of this against supporting turns on gree felony. punishment Because viz: or a are *3 Thus, ‘building’ “... the definition habitation, the definition a structure ‘intended for use or occu- as “building” are critical.1 “Habitation” and pation as a habitation’ can have 30.01, supra, in as follows: § meaning, con- then ‘habitation’ cannot be or “Habitation” means a structure meaning or vehicle a structure strued adapted that for the over- vehicle night includes: a residence or a intended to be used as persons, and accommodation dwelling.” (A) separately each secured or occu- Id., at 600. vehicle; pied portion of the structure or State, supra, criti Blankenship v. and in 743 736 cized v. S.W.2d Chandler (B) appurtenant each structure to or 1987) PDR filed (Tex.App. Corpus Christi — connected the structure or ve- court pending, only appellate which hicle. have considered it. Therein seems to any enclosed struc- “Building” means Dorsey pointed leading opinion by Justice occupation for ture intended use logic Blankenship appears out that “the purpose of or for some a habitation trade, in requirement to conflict with manufacture, ornament, or use. adapted, and premises actually that overnight accom adapted, still be State, supra, the decid- issue persons,” in that the Blanken modation sufficiency support of evidence to ed was an subjec ship court more “focuse[d] finding by trial court that implied than on the tive character of was a habitation. the structure involved Id., showing adaption.” objective features S.W.2d, did not at 597. But opinion it at 738. The found “inconceivable finding that in that the reject hesitate to find an a reasonable would that square holding did not its overnight for apartment unfurnished fit law, viz:
on the Accordingly, it conclud accommodation.” must that the structure ... "... We hold ed: alleged offense have at the time of the actually ‘adapted for the been present in apartment “... While at least at persons’ accommodation for may case night have been intended over- some time used for accommodation, and still be accommodation time past, so used in the at the overnight accommoda- ‘adapted for the apartment it was appellant entered the ” tion of adapted.” not so Id., at 600. Id., C.J., Nye, concurring, at 739. See also appeals did indeed conclude The court of at ff.3 from ample evidence “the judgment, Dorsey In our Justice has that the rent house was to conclude key open found the a door to under- however, Contrary to Jones a habitation.” it standing law, the definitive feature of believed, “hab- that wheth- as a matter of not should a structure is habitation er is, itation” as defined in the statute. That much or what kind depend on “how adapted the structure must have been contains, by wheth- furniture er the utilities are at the time of the offense be fit for connected,” because: “overnight.” for, designed A finished “... place for as, (Tex.Cr. as a Hargett and intended 534 S.W.2d909 built logically a App.1976), live is habitation. people to delivered sans dissent some (5th Dictionary ed. sixty days after the Black’s Law unanimous Cf. Jones, 1979) supra. Writing Court, as a (defining Com residence).” abode, dwelling place, accurately missioner Green summarized reasoning logical, it refers AND "... While this Reamey, OFFENSES CRIMINAL 1. See G. meaning dictionary to the common (1987). IN TEXAS 40-42 DEFENSES to deal with the term habitation and fails throughout unless other- emphasis is mine 2. AH habitation, statutory and the definition of wise noted. wrought by complexities the statute and case Blankenship part of comes he When law.” Dictionary for a Law Black’s resorts Id., at 744. ante, "habitation,” Chief see cogently Nye counters: Justice Thus, had once lived and conclusions of law in that Weeks the facts juxtaposition and then considered that it had last been house until Id,., Hargett. at 910-911.4 facts first factual matter the house in “something years over two rented (unlike pointed he to is nothing its “over- about [ago],” tells us Jones): “It rented had been A house in 1984. night accommodation” so that it certain complete with furniture no beds—is with “two bedrooms”—but accommoda ly persons over- hardly fit to accommodate (Indeed, Id., furni tion.” ture, at 911. electricity” will is “wired for including night. dresser” That it “walnut bedroom bed,” Id., “parts of a that was lights and energy for provide electrical (unlike the burglary.) Also taken as an air conditioner appliances such Jones), the residence in Having water a meter is installed. until *4 one,” “a one that was not landlord “rented new but turning on the main at a water available periodically,” and believed may handy daytime, in meter outside things his tenant “had moved some new coming fau- out not into the house.” Ibid5 —unless inside, in is visible taps cets and the water therefore, Court, every decision In this the dark. acknowledged, recognized, applied has since Jones in the formulation and understood the matter facts of Finally, the record opinion below Blankenship Jones. asked when discuss, are, owner in the words identify, much more does not even Jones; it is content instead he teaching property” State, kind of by the “[w]hat facts of and contrast compare merely to house,” viz: had “inside and, noticing that without prior decisions “Well, quite things, I had a few to its conclusion came each one the Court a— against facts testing the only after items, just general garden line a few dictio- standard, adapt common Jones My daughter tools and stuff. and her as its own test what nary definition having problems husband were and Blankenship, su- “logically a habitation.” equipment stored some of their and stuff pra, at 133. in there. I had two window air condition- ers.”
III. in the bur- was taken air conditioner One elegant residential along such glary, purports The court below to follow gasoline and a jury’s furnishings a lawn chair “approach” simply defers to the finding, disregard of the author- plain hinted that never The owner container. Jones, construction of the statute in itative the structure was in rooms of the “stuff” and construction favor of its own view what storage. than any purpose other there for ought to But and be. away is stored A air conditioner” “window followings abundantly make clear that its the persons,” “comfort of likely provide evidentiary matters selected towire there is no “live” particularly when appeals support trial court of connected. it can be significance. are court’s verdict without Hargett attempt distinguish Hargett made no Neither nor Moss deviated 544-545. holding in Jones that the structure “must have from the Jones tests. ‘actually adapted ‘adapted ...' and still ” persons.’ accommodation of State, burglary supra, v. after the State, supra, Jones v. at 600. What Commission tenant, landlord, Clark, E. asked his Len er demonstrated is that whereas the Green facts Poland, anything the latter “had miss- John legal tests Jones laid down to in Jones failed ing," from the and “Poland’s answer was struck habitation, a structure is a determine whether at It is clear record[.]” Hargett fully met the tests. Thus the facts writer, however, enough what was to this following applying the law of Court was stricken, hearsay grounds, probably on (Tex.Cr. Jones. In Moss v. relating Clark’s answer what Poland told him engaged App.1978), the Court in a similar exer “missing” property own about items of Poland’s tests, cise, beginning with a reiteration of Jones thereby tending burglary, after land, to show Po- comparing then Hargett facts of Jones with those of tenant, actually occupied the hab- finally deciding the facts of Moss itation. Id., Hargett." “are more similar to Jones than Therefore, we hold the evidence is insuf- (Tex.App S.W.2d 132 . —Texar ficient to establish that the kana was a “habitation” as defined in Jones and its Burglary degree of a habitation is a first progeny. The facts here are similar to felony, burglary while of a is a those in supra, because the house degree felony. V.T.C.A., second involved, although it had been rented in the Code, Section 30.02. “Habitation” past, ‘adapted was not “still for the over- “building” 30.01, are defined in Section su- ” night accommodation of Moss pra: State, supra 545, citing “(1) ‘Habitation’ means a structure or supra. While the evidence be suffi- vehicle that for the over- cient to sustain a conviction for night persons, building, a lesser included offense of includes: habitation, and a second de- “(A) each separately secured or occu- gree felony, we are not authorized to deter- pied vehicle; portion of the structure or punishment mine for that offense. Moss v. State, supra (Opinion at 545 Appellant’s “(B) appurtenant each structure to or Therefore, Motion Rehearing). we are connected with the structure or ve- *5 acquittal. constrained to order an We ex- hicle. press at this time as to whether “(2) ‘Building’ any means enclosed struc- appellant may any be retried for lesser ture occupation intended for use or included offense. Garrett v. 749 a habitation or for purpose some of S.W.2d 804 (Tex.Cr.App.1986) (Opinion trade, manufacture, ornament, or use.” Rehearing). State’s Motion for In Jones v. (Tex. judgments of the court appeals of Cr.App.1976), this Court set forth a test to and of the trial court are reversed and the applied in determining whether a struc cause is remanded to the trial court for ture is a habitation. Uncontent entry judgment of acquittal. a of Penal Code definition of “habitation” this
Court added to the Code’s definition “that the structure or vehicle must at the time of CAMPBELL, J., dissents. alleged have been ‘adapted overnight McCORMICK, accommodation Judge, dissenting. or at least at some time persons’ of Today, appellant’s overturns used overnight accommodation of conviction but not before it redefines persons still ‘adapted the over the Penal Code definition of “habitation” ” night 532 acts as a juror thirteenth to reevalu- added). (emphasis S.W.2d at 600. presented ate the appellant’s evidence The Jones Court rationalized this inter- trial. pretation of the statute with two theories: First, the Court stated that the traditional I. REDEFINING “HABITATION” purpose holding burglar that a of a appellant, The evidence established that higher penalty habitation should receive a Dwayne Blankenship, burglarized Elmer burglar protect than a is to at which time he took an air private Therefore, homes. the definition of unit, conditioning gas lawn chair and a “adapted” the term should be construed in oline container. This was uncontested. a manner consistent policy. with this Re- however, Appellant, did contest traditional, jecting general definition of Appeals Court of that the structure he “adapted” the term (“capable of use” or burglarized suitable”)1 broad, was “habitation” as that “made the Jones as too Y.T.C.A., term is legislature Court concluded that “the [did Blankenship 30.01(1). Section See intended to make ... a ‘habitation’ out not] (5th Dictionary, p. English (1967); 1. See Black’s Law Language, p. 34 Ed. 16 Balintine's (3rd Dictionary Ed.1969). Dictionary, p. See also Random House Law 26 overnight certainly adapted for the every that was structure or vehicle could be overnight persons. The record in the future into ac- converted ‘capable commodation or was This house is silent as to utilities. ” use as such.’ 532 S.W.2d at to be new one shown in, of sever- had never lived but one Second, attempted Jones periodical- al Clark ‘rented houses which harmonize “habitation” Po- ly.’ thought the tenant Clark “building.” the definition of the term things some into the land moved The Court reasoned that since defini- him asked and after intend- “building” a structure tion of anything missing.’ Poland’s if ‘he had “habitation,” naturally then ed for use as answer probably should be [This Clark’s] could not have the same mean- appel- from the record on was struck Therefore, a ing. to be. objection. lant’s something more just capable than used an accommoda- “The is sufficient to sustain intended to used as an tion or at 911. conviction.” S.W.2d accommodation. added). (Emphasis
Thereafter, attempts Moss v. S.W.2d but no cited the Jones’ (Tex.Cr.App.1978), distinguish ’definition hold- were made to perpetuated. ing We had to must question of habitation the structure however, emphasize, adapt- that the structure in “actually adapted and still have been (a house) “was not still question ed” as a habitation. per- accommodations of have re Some the Courts (emphasis sons.” at 545 upon the facts solved cases based *6 original).2 to presented more akin were uni Hargett. interpretation results have not
Our of “habitation” did The been State, State, v. Bazroux v. in 634 Compare not work 534 form. S.W.2d (Tex.Cr.App.1976). property (Tex.App. 909 The in- S.W.2d 919 Dist.] [1st — Houston State, Lewis v. 1982, was a house had pet.); volved landlord no 631 S.W.2d 1982, pet.); rented but which the tenants not Worth no (Tex.App. new — Fort yet occupied. v. (Tex.App. We stated: Trotter Har- pet.) (following —Fort Worth “In the instant we conclude that ), gett with Chandler testimony of the owner Clark suffi- 1987, no (Tex.App. Corpus Christi prove cient that the house was a hab- — Jones, criticizing Blanken burglarized. pet.) (following It has itation when been ship ).3 complete rented with furniture so that it mgs. electricity operating. majority emphasizes The
2. now
the word “over-
stated, "Nothing
writing
night,”
in
record indicates
that “the structure must have
Court
adapted
in a
other
at the time of the
that the
condition
suitability
"overnight." Opinion
for the owner’s re-
be fit for accommodation
than one of
"still,” emphasized
upon
p.
sumption
Jones'
in
from
200. The
term
normal life
his return
Moss,
required
employ-
periodic
is not even found in the Penal Code’s
his
travel
in
With each
"habitation."
successive
at 921. The conviction
ment.” 634 S.W.2d
strays
from the Code’s
case the
further
of a habitation was sustained.
original definition.
a mobile home which had
Trotter involved
with the utili-
furniture and household items
Lewis,
large
property
In
one-bed-
available,
discon-
ties
but the sewer line was
apartment. While the
contains
room
Appeals
be
Court of
held this to
nected. The
apartment, the
facts about the
stolen
no other
although
mo-
no one lived in the
habitation
radio,
portable
property included a
a television
time of the offense.
It
bile home at the
set,
oven,
jacket.
The Court
microwave
occupied.
formerly been
sufficient evidence to conclude
struc-
Chandler,
found
noted that
In
the Court
was a habitation.
ture
appeared
logic Blankenship
conflict
Bazroux,
prem-
requirement
that the
the house
tem-
with the
owner of
adapted,
adapted,
country
and still be
twenty-eight
ises
porarily out of the
tour,
persons.
day
completely
for the
accommodation
the kitchen was
business
(sic)
the sub-
"Blankenship
more on
equipped, and
focusses
the house contained furnish-
The majority’s holding, relying upon
acquittal
not be rewarded with an
whenev
Jones, that “the
structure,
structure must have been
er the
which from all outward
adopted for and at the time
appearances
of the offense
adapted
fit
overnight,” Opin-
persons,
presently
accommodations of
p.
ion
improperly construes the stat-
beyond
uninhabited for reasons
the bur
inquiry
ute. The
should be
glar’s
whether a rea-
significant
control. It is
that courts
sonable
would find that the
jurisdictions
similarly
struc-
worded
ture was
accom-
statutes have not construed these statutes
persons.
modation of
belongings
While
majority
as the
does.
People
See
v. Sheir
consideration,
house could
od,
be a relevant
(4th
124 A.D.2d
Jones should holding be overruled. Its nonpenal uates a code definition of hab- that “if the ‘building’ itation, definition of a as a appellate this and other courts will occupation intended for use or face similar convictions. When the habitation can meaning, a struc- deliberates it has before it the definition of ture or vehicle intended to be used as a “habitation” as found in the Penal Code. residence dwelling,” or a them, is backwards with No one instructs and no one is autho- respect legislative intent. them, Instead of rized to “adapt” instruct found limiting the definition of in- in the Penal Code definition of habitation cluding “intended for use as a anything habitation” means “capable of use.” building, definition of it is for more likely Legislature that the wanted to avoid II. THE THIRTEENTH JUROR might slip through situations which the two There problem is more serious definitions. example, For if the “intended majority’s holding. After re- for use as a language habitation” was not defines “habitation” it undertakes to re- included in the building, definition of a view the evidence most *7 built, of a house which is favorable to the verdict but as a thirteenth yet completed, but not would fit neither juror who does not understand that a hovel definition. It is unreasonable to conclude is much as a home as a mansion. The that giving meaning to the words “intended majority writes: for use” would in any way limit the defini- “A house with ‘two bedrooms’—but no tion “adapted of a structure for use as a hardly beds—is fit per- to accommodate habitation.” sons overnight. That it is wired for elec- agree
I with the perception tricity that a provide will not energy electrical aof habitation should lights appliances be more and other such as severely punished burglar than a an air conditioner until a meter is install- building, agree I cannot that Having by the term ed. turning water available “adapted” should be construed consistent on the main at a water meter outside policy. with this Prevention of crime may handy daytime, in be but not over- goal punishment. is as much a night coming V.T. out of faucets and —unless C.A., 1.02(1)(A). inside, taps Section As the water is visible the such, case, and as in this burglar should Slip opinion, p. dark.” jective court, character of the Corpus than on the S.W.2d at 738. The therefore, Christi objective showing adaptation. "[wjhile features apartment held that the Moss and present may all seem to focus on the the case have been intended for ability accommodation, actual prem- may to inhabit the and have burglar ises in the condition past, which the found been so used in the at the time premises. appeared
the
apartment
What the
structure
entered the
it was not
so
be
adapted.”
from the outside is irrelevant."
Id. at 739.
doubt_
is
question
relevant
short,
the
[T]he
members view
viewing
evidence
inadequate
whether,
belongings
after
house
prosecu-
light
to the
proceed
find the evi-
most favorable
their comfort
tion,
could have
support
jury’s ver-
trier of fact
dence insufficient to
rational
of the crime
dict.
essential elements
found the
Jackson,
beyond a reasonable doubt.”
case,
how-
Appeals,
The Court of
this
318-319,
2788-
record evidence could guilt beyond a reasonable in this dissent. finding of Jackson, the dealing opinion probably it does not fit into suffi- because the seminal case with evidence, ciency majority’s evidence. the scheme to reevaluate of is not cited in appellant’s OPINION ON STATE’S MOTION we now affirm the convic- FOR tion. REHEARING Perry The evidence established that
WHITE, Judge. rent into Weeks’ house was broken about Appeal is taken from conviction of bur- August 9:00 P.M. on This rent V.T.C.A., glary of a habitation. house was on the same tract of land as Code Sec. 30.02.1 Punishment as- residence, yards sep- but Weeks’ about 300 eight years sessed the confine- the arated two houses. The rent house had ment. or lived in leased for about two appeal On the direct to Sixth of Court years burglary, the time the but the Appeals, appellant challenged the sufficien electricity (although house was wired cy prove of the evidence to that the bur meter), power the was off and there nowas glarized premises awere “habitation” as water (although service was available V.T.C.A., the Penal Code. See yard). turned off at back The 30.01(1).2 Penal Code See Court belongings, contained some Appeals found the evidence to sufficient equipped with two window air conditioners. prove “habitation” and affirmed the convic Weeks testified structure was Blankenship tion. 715 S.W.2d “adapted (Tex.App. persons.” — Texarkana Appellant petitioned this Court dis- key issue before this Court wheth- cretionary challenging review prove er the evidence was sufficient Appeals’ review of the sufficiency Weeks’ house a “habitation” word and alleging that the be- V.T.C.A., burglary statute, is used law, low was conflict with case Penal Code Texas 30.02. law divides bur- particularly with the “habitation” standard glary realty categories: burgla- into promulgated by this Court in ry buildings Jones burglary of habitations. (Tex.Cr.App.1976). V.T.C.A., See Penal Code 30.02. The for- 200(c)(3). Tex.R.App.Proc., After re- degree felony Rule mer a second granted, Clinton, met) Judge writing (unless view was certain are conditions majority, always degree appellant’s reversed con- latter a first felony. (c) (d). viction Id. at based Jones. The State then filed Motion for Rehear- reviewing sufficiency
ing arguing that should be overruled the evidence to establish whether the State applies wrong because standard in offense, proved has an element of the we reviewing sufficiency of the evidence look must at all the evidence in the question, and because construction most favorable to verdict and deter within should be re- any mine whether rational of fact trier granted motion, vised. the State’s We could have believed the element established (a) if, (1) habitation; A an offense without are commits owner, (2) the effective consent any party he: armed offense is habitation, (or explosives deadly weapon; enters a or a or a building) open portion not then any party injures or at- felony public, to commit a intent anyone effecting tempts injure entry theft; or *9 building flight or while in immediate concealed, (2) remains with com- intent to building. from the theft, felony building mit a or in a or hab- itation; or (1) a or “Habitation" means structure vehicle enters a or habitation and com- that is accommoda- attempts felony mits to a theft. or commit or persons, tion of includes: (A) occupied por- separately each secured or (c) (d) Except provided in Subsection vehicle; or structure section, under is a this felony an offense this section (B) appurtenant or each structure to connect- degree. second ed with the or vehicle. (d) felony An offense under this section is a degree of the first if:
207
higher
rationale
One traditional
beyond a
doubt.
Jackson v.
reasonable
2781,
burglary of a
307,
punishment
61
associated
Virginia, 443 U.S.
99 S.Ct.
of the sanc-
(1979).
protection
to
We are not
sit
a habitation has been
L.Ed.2d 560
Jones, 532
at 600.
juror reweighing
tity
evidence or
S.W.2d
of the home.
thirteenth
burgla-
Indeed,
deciding
the evidence
law offense
whether we believe
common
breaking
element in contention be-
ry
only
established the
could
be committed
doubt; rather,
are to
Lafave
yond
entering
dwelling
a reasonable
we
a
house.
1972).
fact,
Law,
(West
Scott,
trier of
ask ourselves whether the
708
Criminal
rationally,
burgla-
evi-
acting
making
could have found the
possible reason
Another
sufficient
establish
element
dence
a more
crime
a
ry
serious
of a habitation
beyond a
Moreno v.
reasonable doubt.
against persons.
prevent
violence
desire
866,
(Tex.Cr.App.
755 S.W.2d
867
confrontation
violent
chance of
1988).
presume that a
We do not
burglar
a hab-
when a
invades
increased
reasonably just
they were
acted
because
to some other structure.
opposed
itation as
instructed; we test the evidence
properly
recog-
implicitly
Penal Code
current
enough for
to see if it is at least conclusive
burglarized
by including a
nizes this fact
factfinder to
a reasonable
believe based
one of
a habitation as
structure’s status as
that the element is
evidence
established
aggravate burglary
that can
three factors
Jackson,
beyond
443
a reasonable doubt.
degree felony, the other two
to a first
318,
S.Ct. at
61 L.Ed.2d at
U.S.
injury
carrying
a
or
factors
also
Y.T.C.A.,
See
Butler
explosives
deadly weapon.
or a
(Tex.Cr.App.1989).
30.02(d).4
Code
Penal
(Tex.
Jones v.
Guarding
sanctity of the home via
Cr.App.1976)
progeny
and its
we undertook
practice
burglary statutes
is an ancient
prov
to determine whether a structure was
always
reflected in our
which has
en a habitation without the benefit of the
Both the common law and the
State laws.
Jackson,
analysis
supra.
set out
recognized special
old
Penal Code
a
Texas
Whether the evidence was sufficient to es
places
securing
interest
residence
tablish that a structure
a “habitation” is
V.T.C.A., Pe
against unwanted invasion.
now controlled
the Jackson standard.
(repealed
nal
Arts.
concerning
All
this element
law
be commit
Burglary at common
could
examined in the
most favor
must be
against
dwelling
Thom
ted
house.
then
deter
able to the verdict and
we must
(Tex.Cr.
State, 505
men v.
S.W.2d
any
mine whether
rational trier of fact App.1974),
at 711. This
and Scott
Lafave
find
was a “hab
could
as a
of human hab
was defined
beyond itation”
reasonable doubt.
itation,
occupancy rather than owner
require
ship
There was
determinative.
The Penal Code defines a habitation as
present
ment that the residents
adapted for
“a structure or vehicle that is
committed;
the offense was
when
of persons,
away
occupants
were
short
(A)
separately
and includes
each
secured
to the struc
extended time was immaterial
vehicle;
portion of the structure or
occupied
“dwelling
house”.
ture’s classification as
(B)
appurtenant
to or
each structure
at 711. An unfinished
and Scott
connected with the structure
vehicle.” Lafave
though people
qualify even
30.01(1).
house could not
also
V.T.C.A. Penal Code
See
regu
therein,
30.01(2)
slept
could
defining
business
Y.T.C.A.
Code
at 712. Build
larly slept
night.
in at
Id.
“building.”3
(2) any
"Building”
party offense is armed with
provision
reads:
means
This
occupa-
deadly weapon
use or
explosives
enclosed structure intended for
aor
purpose
injures
or for some
tion as
trade,
any party to
or at-
the offense
manufacture,
ornament, or use.
effecting entry
tempts
injure anyone in
*10
flight
building or in immediate
while
(d)
felony
is
under this section
a
of
An offense
building.
from the
degree if:
the first
habitation;
(1)the premises are a
or
ings which were
against
places
not residences
not
tect
into
did
intrusion
those
qualify
they
unless
were attached to resi
people
where the threat to
alarm-
most
qualified
spatial proximity
dences or
ing.
danger
via
special
There is a
associated
part
“curtilage.”
of the habitation’s
Id.
danger
with an intruder in a home-the
occupants
that the intruder will harm the
Texas has defined the
more
offense
occupants
or
violently
that the
react
broadly
than
common law
since
to
trespass
personal
into
haven.
their
century.
nineteenth
Thommen 505 S.W.2d
penalty
increased
is to
further
so,
special protection
at 902. Even
burglars
society
intent of
to
ensure
afforded
places
of residence
re-
stay out of inhabited homes.
pre-1974
tained in
old
Penal
via
Code
burglary
“Burgla-
736,
two different
offenses:
Chandler v.
ry”, which
by entering
could
committed
1987).
(Tex.App-Corpus
then
Christi
He
“Burglary
private
a “house” and
of
resi- goes
say:
on to
night.”
dence at
Articles
Ver-
perceive
It is difficult to
how these
Code,
non’s Annotated Penal
goals can
with the
be attained
current
very broadly
“House” was defined
to mean
state of the law. How can the law deter
“any building
pub-
or structure erected for
entering
private
a criminal from
a
resi-
use,
private
lic or
property
whether the
know,
dence
when
criminal will not
States,
the United
any
or this
or of
structure,
until after he
enters
association,
public
private corporation
building?
it
a
individual,
of any
and of whatever mate-
A subjective
...
test
is hypertech-
which
V.A.T.S.,
rial
Pe-
constructed.”
nical like the one
set forth
the Court
Code,
1974).
(repealed
nal
Art. 1395
“Pri-
merely
of Criminal
seems
residence”,
hand,
vate
muddle
issue.
relatively narrowly: “any building
Id.
actually
or room occupied and
used at the
concerns,
of these
we need to
by any person
time of the
offense
interpretation
review the Jones
of “hab-
V.A.T.S.,
place
Code,
of residence.”
Penal
legislative
itation”.
Jones examined
(repealed
Art. 1391
resi-
Private
burglary
sources for the
statute
con-
penalty
dence
carried
term “not
cluded that “habitation” meant a structure
years” confinement,
less than five
but bur-
alleged
“at
or vehicle that
the time of the
glary
penalty
house carried
(was) actually ‘adapted
for the ov-
V.A.T.S.,
years.
twelve
Penal
ernight
persons’
accommodation
or at
(repealed 1974).
Arts.
at some
least
time used
the over-
statute,
burglary
current
enacted
night
and still
1973, not only retained the extra sanction
‘adapted
residence,
burglary
place
but
” Jones,
The rationale for
in- comfortably
an
accommodate
penalty
presence
creased
of a hab- because of the
utilities
safeguard
pro-
itation
one’s home-to
furniture.5
applied
5. This court addressed the distinction between
sides this
have since
our earlier
habitation and
times in
seven-
in cases where the
has been
three
standard
ties,
decisions,
Appeals’
tried
and five Courts of
be-
convicted for
of a habitation and
*11
makes a structure
“suitable”
light
history
use.” What
In
statute’s
overnight
for
accommoda-
to set
or “not suitable”
purposes,
we now undertake
ques-
complex, subjective factual
guidance concerning the mean-
tion is a
forth new
Their
jury’s
tion fit for a
determination.
ing
in the current
guided
reference
to
inquiry could be
statutes.
using
structure
the
whether someone
mentioned,
Jones
As
stands
time of the
a residence
the
or vehicle as
proposition
the
that a
“must at
offense;
the structure
vehicle
alleged
time of
offense have
the
the
been
utilities,
furniture,
bedding,
contained
actually ‘adapted
overnight
the
accom
belongings common to a residential
persons’
modation of
at some
or-at
least
structure;
the
is of
and whether
overnight
time used for the
accommo
probably in-
such a
it was
character
‘adapted
persons
dation of
and still
”
tended to accommodate
house,
condominium, sleep-
(e.g.
apartment,
Jones at 600. There we noted that
the
home,
trailer).
car,
All
ing
mobile
“adapted”
“capable
can
of use”
word
mean
relevant;
are essen-
these factors are
none
Id. We
rejected
or “made suitable.”
necessarily dispositive.
tial or
broad;
interpretation
every
as too
former
pickup
determination whether
a bur
truck which could
bedrolls
The
“building”
a
“hab
glarized place
the back could be considered
spread across
Id.
appeal
a
habitation under such a definition.
itation” will be overturned
very
As a result
can
that no reasonable
show
narrowly
“capable
trier
to
construed
term
of fact could have found
oven,
jacket,
to claim that the
a
Court found
evidence was insufficient
microwave
apartment
prove
prove
a
"habitation.”
sufficient evidence
“habitation.”
buyer
In
a
a
con-
new house which
had
State,
(Tex.App.-
whose tenant had not moved in was held
State,
743 S.W.2d
the case of Chandler v.
abe
habitation.
(Tex.App.-Corpus
pet. pending),
Christi
(Tex.Cr.App.1978),
Moss v.
the role of substitute factfinder. DUNCAN, JJ., dissent and adhere to the This standard take into account the expressed views of the Court penal deterrence function of the law as original submission. express well as the Code’s objective “to prescribe penalties proportionate that are V.T.C.A.,
to the seriousness offenses.” 1.02(1)(A),(3). Penal Code Sec. Under this construction, punished the criminal will be according seriousness of the invasion premises make,
into that he chooses to corresponds seriousness to the na- ture of the perceives as he SNOKE, Appellant, Robert L. reasonably perceive should them. This attempts standard clarify expli- also Texas, Appellee. The STATE of cate meaning a common word “adapted” from the statutory definition of No. 447-88. “habitation”, so judicial that our construc- Texas, Court of Criminal tion of harmony “habitation” will be in En Banc. statutory with the definition rather than at odds with it. Sept. Any language in Jones or cases Rehearing 22, 1989. Denied Nov.
contrary to the habitation in this standard case is expressly overruled. us, case before the trial court
correctly according jury instructed the the Penal Code definitions of “habitation” “building.” found
guilty habitation.
evidence adduced at trial established (1) the structure was a house once lived in (2) complainant, from now rented time, (3) time to living has a room bedrooms, (4) is electricity wired for readily available, (5)
has water had two installed, (6) window air fully conditioners yards about three hundred from complainant’s current residence was along only driveway providing located residence, complainant’s access to the complain was used to store some of the Moreover, ant’s household items. the own er of the testified that the structure accommoda facts, persons. From these a rea of fact
sonable trier could have found the “adapted persons” ac cording to the standard announced Jack Butler, supra. son and