205 S.W.2d 992 | Tex. Crim. App. | 1947
Rehearing
ON MOTION FOR REHEARING.
At the preceding term of this Court, to-wit, on June 25, 1947, the appeal was dismissed because the transcript failed to show a final judgment. Since that time, appellant has forwarded a supplemental transcript showing that sentence was pronounced upon him and entered on the minutes of the trial court. The supplemental transcript is accompanied by a motion to reinstate the appeal. The motion is granted, the appeal is reinstated, and the case will now be considered and disposed of on its merits.
There are no bills of exceptions nor any objections to the court’s charge in the record. The only question presented for review is the sufficiency of the evidence to justify and sustain his conviction. The evidence adduced by the State, briefly
Appellant’s chief contention is that the evidence fails to show that he entered the building by force as charged in the indictment. We are not in accord with this contention. It was nighttime and cold. The noise which awakened Mr. Sitton was produced by someone opening the door to the building. Consequently, the door must have been closed. Furthermore, Mr. Sitton testified, “I always locked the building from the back.” At least the evidence is sufficient upon which the jury was justified in reaching the conclusion that the door was closed and that appellant entered the building by shoving the door open. It is not necessary that he should have broken the door or the lock on it. It was sufficient that he shoved the door open in order to enter the building. See Sparks v. State, 34 Tex. Cr. R. 86; Matthews v. State, 38 S. W. 172; and Jones v. State, 60 Tex. Cr. R. 426.
Believing that the evidence is sufficient to sustain appellant’s conviction, the judgment of the trial court is affirmed.
Opinion approved by the Court.
Rehearing
ON APPELLANT’S MOTION FOR REHEARING.
In addition to what was said in our original opinion, we note that Sitton, the owner of the building and present therein, testified, as follows:
“The business was broken into in the early morning. I was awakened by the door opening, that woke me up, and I heard some slipping in, thought at first it was a cat, and I got up and heard a racket and looked and saw a silhouette between me and the front door, of a man from about waist up.”
We are unable to agree with the appellant that such testimony was insufficient to authorize the jury’s conclusion that the entry to the building was made by opening the door. Especially is this true in view of the fact there is no testimony suggesting that the door was open at the time or that entry into the building could have been accomplished without a breaking.
The motion for rehearing is overruled.
Opinion approved by the Court.
Lead Opinion
Conviction is for burglary, punishment assessed being two years in the penitentiary.
The transcript does not reflect that sentence was ever pronounced against appellant. The sentence is the final judgment in a felony case, without which this court is without jurisdiction. Art. 769 C. C. P.; Wooldrige v. State, 61 Tex. Cr. R. 324, 135 S. W. 124; Dodd v. State, 77 Tex. Cr. R. 543, 179 S. W. 564; Wilburton v. State, 77 Tex. Cr. R. 657, 179 S. W. 1169; Riley v. State, 137 Tex. Cr. R. 161, 128 S. W. 807. See other cases cited in Note under said Art. 769 C. C. P., and in Branch’s Ann. Tex. P. C., p. 338, Sec. 667.
The appeal is dismissed.