*2 KLINGEMAN, presented writing. September Before BUTTS and in After CLARK, JJ. requirement dic by was satisfied
tating objections to
court
in
reporter
OPINION
presence
and with the consent of the
subsequent
trial court
transcrip
where the
BUTTS, Justice.
tion
ruling
was endorsed with the court’s
an appeal
This is
from a
for
conviction
signature.
and official
Frazier v.
the offense of burglary of a habitation.
light
619 (Tex.Cr.App.1979). In
Following
by
conviction
jury,
in
ruling Dirck v.
579 S.W.2d
punishment at
years’
assessed
five
confine- 198,
(Tex.Cr.App.1979)
that there was
Appellant brings
ment.
grounds
five
compliance
36.14,
substantial
with art.
su
error, citing
charge
error in the jury
on
pra,
though
even
there
no endorsed
trial;
“parties”;
a speedy
denial of
funda-
ruling
signa
trial judge’s
official
error in
jury charge
which omit-
thereon, we
compli
ture
find substantial
general
ted the
culpable mental state in
present
ance in the
case.2
facts;
applying
law to the
insufficient
This
is a
circumstantial evidence
prove
evidence to
was “without
charge
case. A jury
on circumstantial evi-
owner;”
the effective consent of the
charge
parties
dence as well
give
failure
jail-time
full
cred-
given. Appellant argues
may
agree
it.
argument
with the
guilt
principal
show his
as the
fifth
offender but
judg-
error and reform the
However,
as a
He
respect.
party.
urges
ment in that
we do
reversal
because
agree
the remaining
par-
and the evidence did not
contentions
raise
issue of
judgment
affirm the
as reformed.
disagrees.
ties. This court
1. Tex.Pen.Code
to an offense if the offense is
which he
own
A
the commission of the
offense committed
if:
(a)
§
(2) Acting
7.02
person
conduct, by
A
person
[*]
provides
is
criminally
criminally
with intent to
Ann.
criminally responsible
the conduct of another
part:
[*]
§
responsible,
7.01(a) (Vernon 1974):
the conduct
responsible
offense,
[*]
promote
committed
[*]
he
as a
or assist
another
solicits,
[*]
by
for an
party
both.
2. With
jection
ture is
be
acted
of to the court
court and the State’s
the court’s
person to
encourages,
complied
court’s endorsed
after the
to the court’s
deleted.
the 1981 amendment
with if the
reporter
aids,
or
counsel
to the
requirement
ruling
attempts
trial,
objections
offense....
jury.
before the
be in
presence
to aid the other
requirement
art.
official
are dictated
writing
36.14,
reading
signa-
will
ob-
en-
during, and after
the commission of the
Jr.
The record discloses Thomas
placed
on ac-
Antonio
and reliance
his niece’s house
discovered
routinely
parties
he
tions of the
which show
under-
burglarized when
had been
17, 1980,
standing
design
and common
to do a
January
while she
certain
“checked it” on
Tarpley
gone
He
into the
act.
hospital.
was in the
had
*3
cases cited
morning
(Tex.Cr.App.1978)
and come back in the
and
therein.
house that
p. m. All the
about 5:30 or 6:00
afternoon
house,
disposition
The
of the
the
disarray
many
and
were then in
rooms
day by
on the
Lamielle of two items
same
sets,
items,
a
including two television
lamp
the
the
burglary,
stolen from
stereo,
furs, clothes,
property
other
stereo,
acquisition
appellant’s
the
of
thumb-
the back door’s
missing.
were
He observed
print
burglarized premises,
from inside the
away” and the bolt
lock had been “chiseled
relationship
appellant
the
of
and Lamielle
entry could be
back in order that
beaten
by
jury
could all be considered
the
to deter-
give appel-
effected. He stated he did
complicity.
mine
Patsy
house.
permission
lant
to enter the
State,
v.
Savant
Appellant’s reliance on
the house and
Murry, the niece who rented
(Tex.Cr.App.1978) mis
[WJhen provi- meant when it enacted the following that an accused alone committed of- 32A.02, sions acting together supra, fense or was anoth- of art. 4:§ so, parties er or doing others law computing the time which the state applicable. becomes trial, ready must following periods shall be excluded: of error is overruled. Appellant his second of error n ! n n n n *4 alleges was a speedy he denied trial. Tex. (6) period delay a reasonable of result- (Vernon Code art. Crim.Pro.Ann. 32A.02 ing granted from continuance at the 1981). 31, 1980, January Arrested indicted request the the of State if continuance is April 2, arraigned April appellant had granted: trial setting May his first The 1980. (A) of unavailability because the of ev- ready. State announced Trial reset to idence that material to the State’s July June 30. On 1 the court commented to if the has diligence exercised due to counsel: obtain the evidence and there are reason- They ready announced and we [the State] grounds able to believe the will evidence just it ... we didn’t reach because were time; be available within a reasonable n n n n trying something ready else. We are to * try him because we have court [now] (10) any period other of reasonable de- time. justified lay exceptional cir- judge The trial then noted a key witness for cumstances. State, policeman the the who lifted the We hold requirements the of Speedy the fingerprint appellant, shot had been Trial State, Act have been met. Barfield v. hospital. was in the to July Trial was reset 586 538 (Tex.Cr.App.1979). S.W.2d The injured policeman’s pres- 14 to the assure ground second of error is overruled. ence. that date the On State announced appel In his third of error the officer had a turn “taken for the worse” argues lant that the judge, applying trial noted, hospital. at the The State “He is the law the to facts in the jury really important to ease because he required culpable state, omitted the fingerprints.” lifted the The trial court resulting jury in fundamental error. The permitted the appellant to make bond on part: states in pending probation, motion to revoke basis of which was this and reset Now if you find from the evidence be- August appel- trial to 25. At that time yond a reasonable .. . doubt that lant’s to motion dismiss because of denial of did, ... defendant acting either alone or a speedy trial was overruled. Because together with another as a enter party, Jr., Thomas witness State’s ... habitation without the effective con- burglary, who discovered owner, sent of said and that the defend- was in another town and could not be ..., ant had the intent then and there to present following week, until specific theft, commit the as crime of 2. September reset defined, term you is herein then will find the defendant guilty charged in the Appellant produced no evidence to . indictment... demonstrate the lack State’s of readiness State, after first announcement was due to In Teniente 533 806 S.W.2d any reason other absence than of the officer (Tex.Cr.App.1976) the Court of Criminal Franklin. Both of these tes- witnesses addressed a similar omission
636 respect appel- Butts. With ed Justice in an indict- mental state culpable general error, however, ground of I lant’s third burglary: ment for further discussion is warranted. believe the offense gist conduct that is entry into the ... is the burglary ground of error must be Appellant’s third intent. requisite with the habitation light of the statute specific examined in the culpable mental alleges the upon appel- indictment cases which question and the entered relies, which the the essence keeping in mind that state lant habitation; alleged he entered is the unauthor- of the offense of to commit with intent ized into a habitation “with habitation Teniente v. 533 theft.” Young v. S.W.2d reasoning same apply (Tex.Cr.App.1981), S.W.2d charge was sufficient jury case and find relies, involved an which upon state. culpable mental allege required which was robbery conviction aggravated (Tex.Cr. Johnson the trial court’s reversed because is over of error App.1976). require jury to find failed to ruled. property was without appropriation n appel ground of error In his fourth The miss- consent of the owner. effective entry into the appellant’s lant contends therefore, Young, ing element house, to be without any, if was not shown the offense without element of essential *5 effective consent. State’s the owner’s no violation of the statute could which Murry if she knew Patsy counsel asked concerning The court’s statement found. Im Canada, replied no. to which she Roger culpable instruction on the the lack of an “this if she knew mediately she was asked was alleged in the indictment mental state no. there,” replied to which she right man Young, of the dif- in and because dictum “Can’t seen him before?” you “Have ever elements of the essential ferences between given you “Have ever that I have.” say with in- robbery burglary and aggravated house?” go your to into permission him theft, general principle tent to commit in this “No, uncertainty no We find sir.” Young does not control as dictum in stated Moreover, Murry, who Reginald evidence. before us. disposition of the case our house, positive mother in the lived with his (Tex.Cr. 515 West 567 S.W.2d and in the courtroom ly identified upon by appellant, App.1978), also relied for given permission had never stated he in which the trespass a criminal Appellant’s house. go into his appellant to require to charge failed trial court’s merit. without contention is entered find that the accused jury to knowingly. The intentionally or habitation that he agree with trespass the criminal held that since jail. in spent for time given full credit not culpa specific a prescribe not statute does ninety-six spent an additional Appellant state, require 6.021 the section ble revocation of jail on a related (96) days in knowingly, or reck “intentionally, ment of will be credit This time matter. probation charged by the have been lessly” should (19) days nineteen to the ed in addition at 516. trial court. S.W.2d judgment judgment. reflected (Tex. Holloway accordingly. reformed will be by appellant, upon also relied Cr.App.1979), as reformed. judgment is affirmed expressly con trespass case was a criminal by West. opinion on the State’s trolled J., KLINGEMAN, participating. not rehearing helpful in under for motion CLARK, Justice, concurring. between standing significant difference or “intentionally omitting court’s an instruction affirming the trial I concur trespass in a criminal entering reformed, knowingly” stat- the reasons judgment, 1974). (Vernon 6.02 Ann. § 1. Tex.Penal Code
case, hand, on the one charging ment an entry unauthorized “with case, intent commit theft to commit theft” satisfies the other: culpable requirement that a mental state be entirely Applying the possible charged.
“It is
that a
rationale of Ten-
person
us,
iente to the case before
follows
not intend
enter a habitation or know
it
that his actions would cause him
the trial court’s
to enter
was not fundamen-
(i.e.,
entry
tally
habitation
mistake
defective for failure to instruct on
accident) even if he
that he
“intentionally
knowingly” entering.
knew
welcome there.”
teaching
of Teniente is that
those
case,
surplusage
terms are
this
need
intent, and that the indictment in that
by alleging that the accused entered with theft,
intent alleged to commit culpable required
mental state substantive
statute and was not fundamentally defec-
tive. Teniente thus holds that an indict- *6 (Vernon 1974).
2. Tex.Penal Code Ann. § 30.02