*1 testimony regarding I.Q. test that spite years prior the confes-
was taken five
sion.
Finding no reversible
John HARRIS, Appellant, Jr.,
The STATE of Texas, Appellee.
Court of Criminal
May 26, 1971.
Rehearing July Denied 1971. Rehearing
Second Denied Oct. Walter, Houston, appel- K.
Monroe lant. Vance, Atty., Phyllis Bell
Carol Dist. S. Pecorino, Attys., Hous- Asst. Dist. Vic *2 39J ton, “Q. and Aus- September, 1969? tin, for the State. Yes,
“A. sir. in “Q. June, the business then Who owned ’69?
ODOM, Judge. my father’s. “A. It was appeal This is a from conviction attempted punish- of burglary; offense the busi- “Q. you inherited the since Have 63, ment, enhanced under Art. Vernon’s or a it ? ness of Ann.P.C., life. Yes, my me and mother
“A. sir. Both Appellant alleges grounds two of error. now.
First, contention is made the trial that yours your and mother’s now? “Q. It is court committed reversible error refus- Yes, “A. sir.” ing grant motion for a verdict directed acquittal of on grounds the was there is The evidence sufficient allegation fatal variance between the of owner, the that the witness was proof in the indictment and the owner, or the offense was on the date thereof. However, the was if committed. sufficient, not reflects that when record The presented indictment was and filed “ * * * was 23, 1970, indictment returned the father April was alleged: and Ann. deceased. Vernon’s on or Article A.D., about day June, the 9th of * * * * * * C.C.P., provides that “When Harris, 1969 John Jr. belongs person, to the estate of a deceased attempt did to break and enter a house in ownership may to be then be and there care, under the actual con- * executor, de administrator or heirs of such trol management of Chung person, in one heirs. any ceased or such ” * * * Ray Chung (Emphasis supplied) testified as follows: event, e., Ray “Q. (By in either i. if We hold that you Prosecutor) Did own common, joint- in or Chung was owner business on 1969? ly, on the date of the of- with his father Yes, “A. sir.” fense; or, on the date if he was an heir returned, it the indictment was “Q. [*****] consent and permission to enter or attempt ant, Mr. John to enter Harris, Jr., did you give your premises or this Defend- anyone [*] there else error to State, Ground 44 Tex.Cr.R. allege of error said in the indictment property. number one is overruled. 70 S.W. See that he was Kelley v.
at that location? error, ground By his other con judgment tention is that the made “A. I did not.” No. appellant trial court that the recites guilty burglary. We of the offense And on cross-examination: agree. judg in the There a recitation is appellant “guilty of the ment that the “Q. your presently living? Is father with to commit burglary offense of intent passed away “A. He September. No. theft.” said is reformed to read “Attempted Burglary,” to conform to the Ignacio CHAVEZ, Jr., Appellant,
indictment and the verdict of jury. being There no reversible the judg- Texas, Appellee. STATE of ment, reformed, as *3 Court of Criminal Oct. ON APPELLANT’S MOTION
FOR- REHEARING
ROBERTS, Judge.
Appellant urges strongly that the Court
erred in holding
sufficient
son was the owner or owner on the alleged
date of the Ray Chung, offense.
on direct examination testified without ob-
jection that he owned the business on the alleged indictment, date wit,
9, 1969. On cross-examination it was de-
veloped that his father owned the business
on that date and that he had in- “since
herited the business or a of it.”
He testified on cross-examination that he
had worked around the for almost store years
seven or since he years was fifteen age, gone had many he down times
to answer and investigate burglar alarm
that was ringing. jury, being the trier facts, had sufficient evidence to and son,
did conclude that at the date under the
charge of the court. must be estab
lished as of the date of the offense rather part
than the date of indictment. That V.A.C.C.P., referred to in Art. original opinion, purpose
pleading where the is owned person
an estate of a deceased at the time
of the commission the offense.
Remaining convinced that no reversible shown,
error appellant’s has been mo-
tion for rehearing is overruled. Austin,
ONION, J., participating. P. the State.