650 S.W.2d 526 | Tex. App. | 1983
OPINION
Appellant, Keith Wayne Flournoy, was convicted by a jury of attempted burglary of a habitation. V.T.C.A. Penal Code, § 30.02 and § 15.01. Flournoy pled “true” to the second paragraph of the indictment, alleging that he had been convicted of a prior felony, and the jury imposed a sentence of twenty-five (25) years imprisonment.
We reverse and dismiss.
Among Flournoy’s alleged grounds of error is the contention that the evidence adduced at trial was insufficient to sustain Flournoy’s conviction, because there was not proof beyond a reasonable doubt that Flournoy reached “his hand through a screen door of the habitation .. .”; which is a specific allegation required to be proved by the indictment. We agree that the evidence at trial fails to show beyond a reasonable doubt that Flournoy reached his hand through the screen door of the victim’s mobile home.
The indictment and charge to the jury specifically require that the jury find that Flournoy reached his hand through a screen door to the habitation in question. Our review of the record reveals that there was a failure of proof upon this allegation by the State, and that the evidence adduced at trial was insufficient to sustain the jury finding. The complainant’s testimony upon this point, viewed in the light most favorable to the State, but bearing in mind the presumption that the accused was innocent,
The foregoing alone would be sufficient in our opinion to merit reversal. We are constrained to note r further that the State failed to meet the statutory burden of proof of the attempt statute, V.T.C.A. Penal Code, § 15.01(a): “A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” (Emphasis added.) Thus one must be shown to have committed an act, amounting to more than mere preparation, that tends but fails to effect the commission of burglary of a habitation with intent to commit theft, to be convicted in the instant case. V.T.C.A. Penal Code, § 1.07(a)(1) defines the word “act” as “a bodily movement, whether voluntary or involuntary, ...” After reviewing and considering all of the evidence in the present case, we are unable to conclude that Flour-noy committed an “act”, as that word is defined by § 1.07(a)(1) that amounted to more than mere preparation to effect the object offense. He was not seen reaching through the screen door; nor opening that door at all; and no evidence of damage or marks upon that door which indicated an attempted entry was introduced. Flour-noy’s mere presence at the scene
As we reverse upon this ground of error, we do not find it necessary to consider the remainder of Flournoy’s alleged grounds of error.
We reverse and dismiss.
. We note that Flournoy presented an alibi defense at trial. The jury obviously did not believe his alibi defense, and our review on appeal presumes him to be the actor.