OPINION
This аppeal is from a conviction for the offense of attempted burglary; the punishment, enhanced under Article 63, Vernon’s Ann.P.C., life.
Apрellant alleges sixteen grounds of error. First, he contends the state was permitted to introduce evidence of an entry into the building whereas the indictment alleged an attempted burglary.
The record reflects that in the early morning hours of September 9, 1969, appеllant and Joe Buentello were arrested as they crouched, hidden, in an L-shaped enclosure at the rear of a Seven-Elеven Store in Lubbock. The lower portion of the rear wall of the store had been hammered or *148 chipped away, making a hоle approximately 12 x 20 inches in size. Appellant and Buentello both had “white chalky stuff” on their clothing that matched the debris near thе hole in the wall.
Appellant contends that proof of the hole in the wall, coupled with his statement that “we were the only onеs in there,” constituted proof of burglary. We agree. However, appellant cannot complain that the evidence of the state showed him guilty of the greater offense of burglary, but not the offense of attempted burglary of which the jury found him guilty. See Nielson v. Statе, Tex.Cr.App.,
In Nielson ■ v. State, supra, this court stated:
“What sensible end can be served by the bald proposition that when the indictment alleges only an ‘attempt’ there must be an acquittal if the evidence shows the accused went further than the State charged.”
Then the court quoted from State v. Mathis,
In Nielson the defendant was charged and convicted of attempted rape and the proof showed the completed aсt. We conclude that the same principle is applicable to the instant case, i. e. where charged and convictеd of attempted burglary and the state’s evidence shows burglary. We overrule Cordero v. State,
Appellant’s first ground of error is overruled.
Next, by ground of error number two, appellant contends that his motion for mistrial should have been granted. The motion was that a juror read a newspaper article 1 that stаted appellant was being tried as an habitual criminal, thereby rendering it impossible for the jury to give him a fair trial.
The record reflects that, on the morning after the appearance of such article, appellant moved for a mistrial and requested the сourt to inquire of the jury whether any of them had read the article. The following is revealed:
“THE COURT: Ladies and Gentlemen of the Jury, the Court has а question that I want to ask this jury as a group, and listen carefully to the question that the Court will ask you, and it can be answered with yes or no. But wait until I call for the answer. Is there anyone on this jury who read any article about this case in this morning’s copy of the Avalanche-Journal ? If you have read any such story, will you simply answer yes?
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“A JUROR: Yes, sir, I saw the headline on there and I started reading it and I discontinued it.
“THE COURT: You discontinued it?
“A JUROR: Yes, sir.”
Appellant maintаins that this constituted receiving additional evidence by the jury.
We note that only one juror responded that he “started reading” the newspaper article, and he discontinued it. Therefore, there is no showing that the said juror read the part therein which referred to аppellant as being tried as an habitual criminal. Even if this had been in fact developed, appellant would have to show that it оperated to injure or prejudice him. Johnson v. State, Tex.Cr.App.,
The second ground of error is overruled.
Appellant’s third ground of error is that the trial court reversibly erred by overruling his objection to the arresting officer testifying that appellant admitted he and another entered the building. He cites Miranda v. Arizоna,
The testimony rеveals that the officers were in the process of searching appellant and Buentello a few seconds after the arrest and within six to seven feet of the point where the officers first saw them. Officer Baker testified that he did not have time to give a warning. Thе record then shows the following:
“Q. (By the prosecutor) Did Felix Flores at that time say anything?
“A. Yes, sir, at that time we had them in a search position. Another (police) car drove up, and I told them to check the front because there might be someone inside the store.
“Q. All right. Now, Officer, what did he say at that time ?
“A. He said, ‘No, we were the only ones in there.’ ”
First, wе note that the statement was not in response to a question asked him. Next, it was made almost simultaneously with the arrest. Such statement was admissible as part of the res gestae. See DeHart v. State, Tex.Cr.App.,
Ground of error number three is overruled.
Grounds of error four through eight relate to the enhancement portion of the indictment. Appellant moved to quash the indictment in its entirety, to quash the enhancement portions of the indictmеnt, to prohibit the prosecutor from reading the enhancement provisions to the jury, and to prohibit the introduction of evidence pertaining to the enhancement paragraphs of the indictment. His contention is that the enhancement paragraphs of the indictment which raised the maximum penalty from 4 years to life imprisonment violate Article 1, Sec. 19, of the Constitution of the State of Texas, Vernon’s Ann.St. and the 8th and 14th Amendments to the United States Constitution prohibiting cruel and unusual punishment. This question has been decided contrary to аppellant’s contention, and we adhere to such decisions. See Ex parte Reyes, Tex.Cr.App.,
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Appellant’s contentiоn that' the crime herein involved was “trivial in nature” and therefore implies its unsuitability for enhancement purposes under Article 63, V.A.P.C., is without merit. Bеasley v. State, Tex.Cr.App.,
No error having been shown, grounds of error 4, 5, 6, 7, and 8 are overruled.
The remaining grounds of error have been examined, and we find them tо be without merit.
Finding no reversible error, the judgment is affirmed.
Notes
. The newspaper article referred to reads, in part:
“In another 99th District Court case, Felix Navarette Flores, 30, of 2806 Cornell St. went on trial Thursday for attempted burglary last Sept. 9 at а Seven-Eleven Store at 5119 University Ave.
“Flores is being tried under an habitual criminal indictment which alleges two prior felony convictions. If Flores is found guilty of the attempted burglary charge a life prison sentence will be mandatory.
“Police arrested Flores and Joe Buentеllo, 20, 3107 Itasca St. hiding behind some trash cans at the rear of the drive-in grocery store last Sept. 9. Officers said a hole measuring one-fоot by two-feet had been knocked in the wall.
“Buentello was found guilty of attempted burglary Jan. 14 and Judge Davison sentenced him to four years in the penitentiary.
“The jury is scheduled to hear more testimony today.”