652 S.W.2d 509 | Tex. App. | 1983
OPINION
Appellant was convicted after a jury trial of the offense of burglary of a habitation. His punishment was assessed by the court at forty-five years imprisonment after one prior felony conviction was proved to be true, as alleged in an enhancement paragraph. Appellant brings three grounds of error.
In his first ground of error appellant argues that the evidence is insufficient to support the judgment because the victim, William Duncan, never expressly stated that he did not give effective consent to the appellant to enter his habitation. Although Mr. Duncan never used the words “effective consent” in negating appellant’s consent to enter, it is permissible that consent be negated by circumstantial evidence. This has been approved in cases of burglary with intent to commit theft, Taylor v. State, 508 S.W.2d 393 (Tex.Cr.App.1974), burglary with the intent to commit sex abuse, Kirvin v. State, 575 S.W.2d 301, 303 (Tex.Cr.App.1978), and burglary with intent to commit rape. Prescott v. State, 610 S.W.2d 760, 763 (Tex.Cr.App.1981). Among the facts used in these cases to show that the burglar lacked consent to enter were
Ground of error one is overruled.
In ground of error two, appellant complains that evidence of an extraneous offense was wrongly admitted. The prosecutor was offering pictures of property found in appellant’s possession at the time of his arrest when the prosecutor referred to one picture as showing a “fur coat belonging to Anita Parks.” No evidence had been adduced regarding Anita Parks. Appellant’s trial counsel initially objected that this was outside the record, and the court sustained the objection and instructed the jury to disregard the prosecutor’s statement, but denied appellant’s motion for mistrial. The prosecutor later referred again to the same exhibit as a fur coat taken from the defendant’s trunk, at which time appellant’s counsel argued that the prosecutor was testifying to items not in evidence, an objection which the court overruled.
We note at the outset that neither objection made by appellant’s counsel at trial complained about an extraneous offense. Since the objection made at trial is different from that made on appeal, nothing is presented for review. LeJeune v. State, 538 S.W.2d 775, 780 (Tex.Cr.App.1976).
Furthermore, a reference to the property of Anita Parks being in appellant’s possession does not necessarily connote an extraneous offense. Anita Parks was not the complainant in this case and there is nothing unusual about one person being in consensual possession of another’s property. The mere fact that one possesses the property of another gives no inference that the possessor has committed a crime.
Finally, even if the prosecutor’s statement does suggest an extraneous offense, the prejudice is certainly not sufficient to cause reversal in view of the minor prejudicial effect the statement may have had. Compare Thompson v. State, 612 S.W.2d 925, 928 (Tex.Cr.App.1981) in which very prejudicial evidence regarding an extraneous murder case was held cured by the trial court’s instruction to disregard.
The only authorities relied upon by appellant, Nichols v. State, 378 S.W.2d 335, 336-38 (Tex.Cr.App.1964) and Reed v. State, 522 S.W.2d 466, 467-70 (Tex.Cr.App.1975) are distinguishable. Both had to do with polygraph examinations and questions concerning them, a subject not involved here, and the Reed ease was affirmed despite the error.
Ground of error number two is overruled.
In ground of error number three, appellant complains that the trial court committed reversible error by submitting a charge regarding the presumption of appellant’s guilt arising from his recent, unexplained possession of stolen property without properly charging the jury under the provisions of Tex.Penal Code Ann. § 2.05(2) (Vernon Supp.1982).
Appellant made no request for such a charge and no objection to the absence of such a charge. Consequently, only fundamental error will be considered. He relies on Slagle v. State, 570 S.W.2d 916 (Tex.Cr.
In addition, Section 2.05 requires the court to limit the jury’s consideration of any presumption used by the State to prove a defendant’s guilt. Its purpose is to assure that every defendant is proved guilty, not merely presumed guilty, as a result of the State’s reliance on presumptions. Section 2.05 does not apply to this case, however, because the presumption here involved is a judicially created presumption, not a statutory one. Section 2.05 applies only “When this Code (the Penal Code) or another penal law establishes a presumption with respect to any fact ... ”. The presumption of theft arising from recent, personal, unexplained possession of stolen property is not one established by the Penal Code or any other penal statute and is, therefore, outside the express terms of § 2.05.
Ground of error three is overruled.
The judgment of the district court is affirmed.