*1 question” ateness ample find support in the
evidence in each case.
Thus, opinion in Wilder and Armour upon
relied an reading erroneous of Liv-
ingston and Smith for its conclusion that jury may affirmatively find on the “de- question”
liberateness at the trial of a man,” they only
“wheel if find that
“triggerman’s” conduct was committed de-
liberately expecta- and with the reasonable
tion that the death of the deceased would By reliance, misplaced
result. virtue of the analysis appar- careful of the issue was
ently thought to unnecessary be in Wilder Armour; but, Ias have demonstrat-
ed, scrutiny purported rationale of disapproval ease mandates our of it.
There is way applica- no conceivable parties punishment
tion of the law of
issues in trial could have con- sentence;15 so,
tributed to his death erro- jurors
neous communication to selected application
that such an be made was
harmless a reasonable doubt.
I opinion concur in the
the Court. Wayne FLOURNOY, Appellant,
Keith Texas, Appellee. STATE
No. 597-83. Texas, Appeals of
Court of Criminal
En Banc.
Feb.
1984.
course,
support
finding
say,
the law
evidence to
on the deliberate-
15. But that is not
sufficiency
any application
parties
ness issue.
has
*2
were,
(court
locked,
they
and
Larry
Thompson
she found
appointed
M.
on
which
position whereby
only),
Worth,
placed herself in a
appeal
appellant.
Fort
for
then
encompassed appellant,
her field of vision
Curry,
Atty.,
Tim
Dist.
C. Chris Marshall
vehicle,
passenger that was in
his
Medlin,
Gary
Attys.,
L.
Asst. Dist.
Fort
However,
ap-
neither
appellant’s vehicle.
Worth,
Huttash,
Atty., Aus-
Robert
State’s
passenger were able to see
pellant nor his
tin, for the State.
the
home what
from the front of
mobile
to the front
the window
was inside because
“one-way-mirror,” in that
door resembled a
placed on
type
some
of substance had been
OPINION ON STATE’S PETITION FOR
door, thereby
the window of the front
enab-
DISCRETIONARY REVIEW
ling
the inside of the
home to
one on
mobile
TEAGUE, Judge.
outside,
preventing persons on the
see
seeing inside the home.
outside from
State, through
petition
The
the
dis-
for
mem-
by
filed
cretionary review that was
Conley
appellant walked to
testified that
Curry,
Tim
staff of the Hon.
ber
the
home. He then
the front
the mobile
County, chal-
Attorney
District
of Tarrant
hitting
striking
his
commenced
or
with
holding
lenges the correctness
strip
or
a metal
that was attached
hand
fist
Appeals made in
Court of
the Fort Worth
to the mobile home. This caused a loud
Flournoy
650 S.W.2d
However, Conley
respond
noise.
did not
to
evi-
(Tex.App.1983), which was that
appellant’s “knocking.”
appellant
After
sustain the at-
dence was insufficient
to
any response,
did not receive
he returned
tempted burglary of a habitation conviction
automobile,
spoke briefly
to his
where he
Flournoy,
is the
Wayne
of Keith
who
passen-
passenger, after which the
with his
agree
lant in this cause. We
with
ger immediately got out of the vehicle and
to sustain
the evidence is sufficient
home,
proceeded to the rear of the mobile
The
appellant’s conviction.
attempted
he
to look inside of
where
re-
therefore be
will
Court
through a rear window.
home
mobile
to that
and the cause remanded
versed
However,
high
too
the window was
because
appellant’s grounds
it to consider
Court for
ground, his efforts to see the
from the
yet
have not
been reviewed.
of error which
naught.
mobile home were for
inside of the
got
returned and
back inside
He then
Lyndia
reflects that
The evidence
appellant’s vehicle.
home
in a mobile
complainant, resided
that after
Conley further
testified
Conley
County.
area of Tarrant
in a rural
of the mobile
passenger went to the rear
on
approximately 9:00 a.m.
that at
testified
home,
appellant return to
she then saw
watching televi-
day
question,
while
home,
“pro-
he
accompa-
of the mobile
where
sion,
was
front
appellant,
saw
who
she
his
trying to unlock the door ...
passenger, drive his
ceeded
unidentified
nied
moving
trying to—
driveway, park the
like he was
into her
hands were
vehicle
motor
vehicle,
something,
like he
and com-
or
vehicle,
like a screwdriver
get out
Conley
get
something.”
front of her
into
walking
trying
mence
toward
was
closed,
in-
remained
passenger
“The screen door was
home.
also testified:
mobile
first time
trying to—going
This was the
the vehicle.
and he was
side of
door, trying
seen either
to the main door
Conley had even
screen
kept moving his
watching, as he
passenger.
his
I was
...
hands,
open the
like
was
walking
her
toward
was
While
door.”
[front]
chair,
home, Conley got up from her
mobile
opinion that
forming the
Conley, after
set,
went
the television
turned off
ready
come into
getting
appellant “was
doors of
front and back
checked both the
house,”
shotgun, af-
got a loaded .410
they were
sure that
residence to make
her
placed
ter which she
directly
herself
behind
effect the commission of the offense in-
the front door.
opened
She then
the door.
tended.
Appellant, who was
standing directly
then
comports
This
with former Penal Code Ar-
in front of
doorway
to the mobile
provided:
ticle
which
by Conley:
told
the hell out of
“[G]et
An ‘attempt’
commit the crime of
[to
here.” Appellant
immediately ran to his
*3
burglary]
accomplish
is an endeavor to
parked automobile,
inside,
got
and then
burglary
crime of
carried
away
drove his
Conley’s prem-
vehicle
from
preparation,
falling
mere
but
short of the
however,
ises.
successfully man-
design
any part
ultimate
in
of it.
aged to make a note of the number of the
plate
appellant’s
license
that was on
vehi-
We
provisions
believe that
of
Thereafter,
cle.
she
notified
authori-
15.01,
Section
supra,
in conjunc
when read
them,
ties
alia,
and informed
inter
of the
tion
present
statute,
with the
burglary
see
plate
license
number she had taken down. V.T.C.A.,
Code,
30.02,
Penal
Section
are
eventually
The vehicle
appel-
traced to
clearly written to reflect that in order for
lant, whose defense to the accusation was
successfully
State to
establish that the
alibi.
attempted burglary
crime of
has
com
been
by
accused,
mitted
necessary
it is
Appeals
The Court of
for
held the above
prove beyond
the State to
evidence was
a
insufficient
reasonable
establish be
doubt,
yond
by
reasonable doubt that
either direct or
had
circumstantial
evidence,
accused,
attempt
committed the criminal offense
that the
requi
of
with the
burglary
intent,
ed
Conley’s
did an act
amounting
habitation.
It fur
site
to more
ther held that
did not commit
preparation
an
than mere
to enter the habita
“act,”
V.T.C.A.,
as that word is defined
complainant,
tended,
tion of the
which
Code,
1.07(a)(1),*
Penal
Section
failed, to effect the commission of the bur
preparation
amounted to more than mere
glary.
object
effect the
offense. The Court of
instance,
In
alleged
this
Appeals expressly
following:
stated the
“act,”
supra,
see
occurred when
yet
... his conduct had not
reached a
lant “reached his hand
a screen
point where it could be said to amount to
[Conley’s]
door of
habitation.” We find
more than
preparation
mere
...
hold, contrary
Appeals,
to the Court of
respectfully disagree
We must
with the
proved
allegation beyond
that the State
its
conclusions the
Court of
reached.
a reasonable doubt.
State,
McCravy
v.
Recently,
this Court in
Ap-
when the
We believe that
Court of
(Tex.Cr.App.1980), pointed
reversed cause remanded to that majority pretend does not even Court. opinion appeals implicates of the court of a Ultimately
reason for review. all it does is ONION, P.J., concurs the result. conclude, contrary appeals, court of that the evidence is suffi- CLINTON, Judge, dissenting. cient. That is not a valid reason under our attempted burglary The indictment for Tex.Cr.App. own rules. See Rule 302. alleged habitation amounting as the “act Adhering the view that “review” such as than mere preparation,” to more V.T.C.A. misapprehends assigned the new role § Code, 15.01(a), Penal did to this Court constitutional amendment through “reach his hand a screen door of enactment, legislative respectfully I Appellant the habitation ...” contended dissent. appeals agreed court of that “the evidence at trial fails to show Flournoy
reasonable doubt that reached his
hand the screen door of the vic-
tim’s mobile home.” Flournoy v. (Tex.App.—Fort
1983). majority Now the would find other-
wise. *5 presented complaining The State wit- DUHART, Appellant, Rene Paris appellant and
ness to relate what she saw companion his do and she did on the what question, majority opin- occasion Texas, Appellee. The STATE of testimony out much her as it ion sets as No. 738-83. which, pertinent—in none of how- deems Texas, Appeals of ever, Court of Criminal complainant say that she does En Banc. actually his hand saw “reach 1 Thus, through a screen door.” resolution 15, 1984. Feb. sufficiency depends for the issue interprets part most on how one her “con-
clusory statements that this is what must happened, instead of statements that
have happen,” Flournoy
she saw
supra, at 525. view, judges my
In three of the court to, did, fully competent
appeals are record to find that “there was
review the allegation by the proof on this
failure of State, supra. See
State,” Flournoy v. Wil (Tex. State, 654 S.W.2d 469-470
son v. (Clinton,J., dissenting). Veri
Cr.App.1983) Wilson, taken in policy position
ty of the instant cause
supra, is fortified thing.' Conley testified: ‘The screen door also majority relates: 1. The closed, trying to—going he was ... she then "Conley testified further door, trying get the screen of the mo- to the front appellant return saw trying watching, kept ‘proceeded to un- I was as he main door.... where bile hands, moving trying open like moving hands were the door ... his his like he was lock trying a screwdriver some- into some- to—like he was door.” [front] thing, like he was