Jingles v. StateJingles v. State
- Reporters:
- , ,
- Before:
- Ellis
OPINION
ELLIS, Justice.Appellant, Joey Jingles, appeals from a judgment of conviction for the offense of burglary of a building with intent to commit theft, enhanced by two prior felony convictions. The jury rejected appellant’s not guilty plea and found him guilty as charged in the indictment. Appellant pled “true” to a prior felony conviction for burglary of a building, but “not true” to a prior conviction for credit card abuse. The jury found both convictions true and assessed punishment at thirty years confinement in the Texas Department of Corrections. We affirm.
In three points of error appellant argues that the State’s evidence was insufficient to establish the elements of the offense as alleged in the indictment, that the court’s charge was fundamentally defective, and that the trial court erred in overruling his motion to dismiss pursuant to the Texas Speedy Trial Act.
On April 1, 1985, while he was in jail for another offense, the State indicted appellant for the August 29, 1984 burglary of Jimmy Burrell’s law office in Waller County, Texas. A boarded up rear window of the office had been forced open to enter the building. The State offered eyewitness testimony that appellant and an accomplice committed the offense. The State could not offer Burrell’s testimony because he died prior to trial. Although the State did not reindict appellant, it offered circumstantial evidence that Burrell did not consent to the unlawful entry.
In his first point of error appellant alleges there is insufficient evidence to support the jury’s finding him guilty. He argues that the State failed to establish lack of effective consent by the owner of the building. In reviewing the sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing the evidence in the light most favorable to the *128 verdict, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Draper v. State, 681 S.W.2d 175, 176 (Tex.App.—Houston [14th Dist.] 1984, pet. ref’d). The standard applies to review of both direct and circumstantial evidence. Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983) (opinion on State’s motion for rehearing).
The State was required to establish, beyond a reasonable doubt, the elements of burglary alleged in the indictment and required by
Jimmy Burrell died on September 12, 1985. Appellant argues that because Burrell himself did not testify at the November 19, 1985 trial, the State failed to establish lack of his effective consent. We disagree. It is settled law in Texas that the controlling date for ownership of property is the date of the offense. Harris v. State, 471 S.W.2d 390, 392 (Tex.Crim.App.1971) (opinion on appellant’s motion for rehearing). Burrell’s death on September 12, 1985, did not affect his ownership of the property on August 29, 1984, the date of the burglary. Although the State was required to prove that Burrell did not consent to the burglary, Texas law has long permitted proof by circumstantial evidence to show lack of the owner’s consent to a burglary. See Taylor v. State, 508 S.W.2d 393, 397 (Tex.Crim.App.1974); Tatum v. State, 649 S.W.2d 139, 142 (Tex.App.—Fort Worth 1983, pet. ref’d). Consequently, lack of Burrell’s testimony would not prevent the jury from concluding that he did not consent to Jingles’s entering his law office through a boarded up window at night on August 29, 1984.
The State called Wanda Mitchell who testified that she was attorney Bur-rell’s secretary at the time of the burglary as she had been for seven years prior. She stated that she and Burrell were the only persons who had access to Burrell’s office on the night of the burglary, that she had not given appellant nor anyone else permission to be in the building to remove a stereo and two televisions, and that Burrell had never, in her presence, given appellant permission to enter the office by forcing open a boarded up window. Another witness, Earline Brady, who lived behind Bur-rell’s office, identified a photograph of the rear of Burrell’s law office. She stated that she saw appellant and another man enter and exit Burrell’s office through the forced rear window entry carrying a stereo and two televisions on the night of the burglary.
After viewing the evidence in the light most favorable to the verdict, we find it excludes every reasonable hypothesis except the guilt of Jingles. See Johnson v. State, 673 S.W.2d 190, 195 (Tex.Crim.App.1984). We hold the evidence is sufficient to establish beyond a reasonable doubt that Burrell never consented to appellant’s entry into his law office despite lack of Bur-rell’s own testimony. Appellant’s first point of error is overruled.
Appellant’s second point of error alleges that a new trial is necessary due to a fundamental error in the court’s charge to the jury during the punishment stage. Since appellant failed to object and indeed offered “no objection” to the court’s charge, he has waived all
except
fundamental error.
Appellant’s indictment and the court’s charge on punishment both recite two enhancement offenses. Appellant pled “true” to the earliest (first) prior offense but “not true” to the most recent (second) prior offense. Appellant essentially argues that
Tex.Penal Code.Ann.
d) If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 25 years.
The State must prove its enhancement case as alleged in the charging instrument. Ex parte Augusta, 639 S.W.2d 481 (Tex.Crim.App.1982) (en banc); Hollins v. State, 571 S.W.2d 873, 875 (Tex.Crim.App.1978). However, it is well settled that the State need not allege enhancement counts in an indictment with the same degree of specificity that the primary offense requires. Freda v. State, 704 S.W.2d 41, 42 (Tex.Crim.App.1986) (en banc); Hollins, 571 S.W.2d at 875. The test is whether the accused has been misled to his prejudice. Freda, 704 S.W.2d at 42.
We also find that the court’s charge instructed the jury properly concerning the two prior felonies used for enhancement. The State‘s proof at trial showed the succession and finality required by
Appellant raises an alleged violation of the Texas Speedy Trial Act,
The judgment of the trial court is affirmed.