*1 state of preclude ‘reckless’ does not
charge thereon though even said culpable
mental alleged state is not in the indict- definition,
ment. By V.T.C.A., Penal 6.02(d) (e), § ‘reckless’ is
lesser culpable mental state than ‘inten-
tional’ ‘knowing.’
“For the of purposes the submission to jury of the lesser included offense of
aggravated assault, we hold culpable
mental state of ‘reckless’ is included un-
der the canopy higher culpable
mental states of ‘intentional’ and ‘know-
ing’ alleged in the indictment for the
greater offense of attempted murder. error,
Thus it was not much less funda-
mental error a charge to submit authoriz-
ing conviction the lesser included of-
fense of aggravated upon assault a find-
ing of culpable the lower mental state of ” ‘reckless.’ v. supra. Rocha
We our opinion conclude that on rehear-
ing in Rocha supra, is controlling,
and it was not error for the trial court to charged
have regard as it did with
culpable mental of “recklessly” state in con-
nection with the lesser included offense of
aggravated of which assault
was eventually convicted.
The judgment Appeals Court of
and the trial are hereby court affirmed. WALLER, Appellant,
Paul Edward Texas, Appellee.
The STATE of 67758.
No. Appeals Texas,
Court of Criminal Banc.
En 2, 1983.
Feb. April 13, Rehearing
On 1983.
309 Raffaelli, Atty. Rodney and Dist. Louis J. Jr., Malaby, David W. D. McDaniel and Texarkana, Robert Hut- Attys., Asst. Dist. Walker, Alfred Asst. tash, Atty. and State’s Austin, for Atty., State. State’s
OPINION DALLY, Commissioner. for appeal an from a conviction
This is building; V.T. burglary of a the offense 30.02; Code, the punish- Penal C.A. Section years. for 10 imprisonment ment is 30.02(a)(1) V.T.C.A. Penal Section provides: if, an without
“A commits offense owner, he: consent of the the effective habitation, (or building any or a enters a building) open not then portion of a felony intent to commit a public, the theft,” raised neither in the trial court Although an we are confronted with appeal, nor on fundamentally is defec indictment which Pres holding parte our in Ex tive under tridge, 605 S.W.2d case, which there was a collateral In that we held that judgment, attack on the fundamentally defective. indictment was It was there said: burglary
“It is essential to the offense of
building
entered
building
of a
The in
open
public....
not be
to the
for
fundamentally defective
dictment
is
allege
building
that the
entered
failing to
public.
to the
Com
open
was not then
(Tex.
522 S.W.2d
pare Garza
State, 537
Cr.App.1975);
Johnson
(Tex.Cr.App.1976).”
case it is
In the indictment in the instant
Septem-
on or about
alleged
unlawfully intentionally
ber
1979: “did
building
enter a
without
knowingly
and
the own-
Phillips,
of Ethel
effective consent
er,
and
attempted
therein
to commit
theft,”
The indictment does
committed
to the
building
open
was not
allege that
Sterle, Texarkana,
element of the offense
Joseph
appel-
public,
A.
for
the indict-
building.
lant.
of a
Since
ment does not
an
commit a
allege
element
“with intent
or theft”
it
fatally
offense
is
defective and reversal is
averment
there must be an
build-
required. Ex parte
Prestridge, supra;
cf.
open
public.”
ing was “not
then
Allison v.
(Tex.Cr.
“(1) enters a habitation, any or cases Court building or a holding prosecu- be as that (or any portion may a construed of then building) not (3), 30.02(a)(2) supra tions under and intent to com- open public, to the Sec. theft; mit a felony or must include the averment that build- or public, ing open they entered was not concealed, “(2) remains with intent to are overruled. theft, a building commit or in a habitation; or or grounds appellant In two of error com- enters a and “(3) building or habitation in denying of the court’s action plains trial or to attempts commits commit a felo- lead- motion to his “admission suppress his ny (Emphasis supplied.) theft.” or of the crime” and the ing to the fruits overruling suppress a evidence of motion pro- The indictment in the instant case result of admission. obtained as the vides in that on or pertinent part appellant September unlawfully: about 1979 did for of appel- After a warrant the arrest “intentionally and enter a knowingly Texarkana, Officer lant was issued building without effective consent of se- Sharpe city’s police department of that owner, Phillips, Ethel at- therein Texarkana, Ar- of two cured the assistance theft.” tempted commit and committed appellant to arrest opoliee kansas officers at the 30.02(a)(1), apartment in an an Ada Faucett supra requires Sharpe ac- building city. their indictment where one enters a Bramble Courts in 30.02(a), pointed supra concurring opinion parte glary were 1. In in Ex Pres- under Sec. tridge, supra, distinguishing characteristics out. committing bur- of the first third mode companied the officers and may testified that witnesses. He choose to believe or upon appellant’s arrest he him Mi- read his all any part any disbelieve witness’ randa rights response and in ques- to his testimony. Myre tioning appellant stated that he understood (Tex.Cr.App.1977); Simmons v.
them. Sharpe had earlier received informa-
S.W.2d 465
The trial
tion that items taken in the burglary were
findings
court
extensive
of fact and
made
located at
apartment
Faucett’s
and he
following
hearing
conclusions of law
permission
asked her
apart-
to search the
suppress. Among
motion to
them was a
declined,
ment. Faucett
Sharpe
and while
Miran-
finding
appellant
given
was
his
discussing
possibility
getting
warnings upon
da
arrest. We find there is
search warrant
officers,
with the Arkansas
support
evidence to
this as well as
ample
interrupted the conversation and
other
the court.
findings by
Sharpe
told
he
Ap-
wanted to talk to him.
Appellant appears to further com
pellant
Sharpe
told
that Faucett had noth-
*4
plain that
the statement was inadmissible
ing to do with
burglary,
that items that
Sharpe,
person
because
to whom the
were taken in the burglary were at his
made,
confession was
was not an Arkansas
sister’s house and that he would take the
officer and was therefore unauthorized to
officers to that
location. Appellant was
give him the Miranda
in
state.
warning
that
taken
Texarkana,
Arkansas Police
38.22,
Art.
2(a),
provides
Sec.
V.A.C.C.P.
Department where he
again
was
advised
warning
that
the accused shall receive the
his
rights.
Miranda
Appellant
then called
15.17,
provided for in Art.
supra, from a
his sister and told her he
put
had
a box of
magistrate or “from the person to whom
items underneath a bed in a back bedroom
the statement
is made.” We find no merit
and that she
give
was to
the items to the
in appellant’s argument.
officers.
then told the officers to
Appellant
We
by ap-
find
oral statement made
go to
Ferguson, Texarkana,
“29
Arkansas.”
pellant contained assertions of
that
facts
Upon arrival at this address a woman came
were found to be true and which conduced
to the door with a box containing
type-
a
guilt
to establish the
appellant.
See
writer, radio and other items which were
38.22,
3(c),
Art.
supra.
No error
is
later
identified
the victim
burgla-
of the
shown in the court’s action in overruling
ry.
appellant’s motions to suppress his confes-
Contrary to Sharpe’s version, appellant
sion and the items recovered as the result of
calls our attention to his
that
testimony
he
same.
was
given
warning
Miranda
when
Appellant contends the court erred
he was arrested. Appellant further com-
in failing
suppress
to
the identification tes
plains that he was not taken
mag-
before a
timony of a witness.
istrate as required by
15.17,
Art.
V.A.C.C.P.
hearing
appellant’s
At a
on
motion out-
Absent a showing of a causal con
presence
side of the
of the jury it was
nection between a failure to take an ac
developed that Barrtett Marshall cashed a
cused before a magistrate and the accused’s
check at
Piggly Wiggly
store where he
confession, the validity of a confession is
manager
was determined to have
not affected.
State,
McDonald v.
631
been taken in the
question. He
(Tex.App.1982);
Maloy
State,
v.
appellant’s picture
photo-
identified
in a
sons in the photographs other were differ- ent from those appellant. SAMUDIO, Appellant, Daniel hearing At the Marshall testified that he The STATE of Texas, Appellee. immediately recognized appellant in the photographic spread. He said the transac- No. 546-82. tion was “fresh my mind” when he Court of Criminal Appeals Texas, picked appellant from the photographic En Banc. spread and testified in detail how he was 9, Feb. 1983.
able
remember appellant
having
from
Certiorari
Denied June
1983.
seen him in the store. He
related
he
See
appellant was He buying. opportu- had an
nity appellant eight observe ten min-
utes.
When a ability witness’ to make an
in-court origin identification has an inde
pendent of an alleged improper pre-trial procedure,
identification testimony is
admissible at trial. Thomas v.
S.W.2d 290 (Tex.Cr.App.1980); Komurke v.
State, testimony
Marshall’s shows ability that his
to identify appellant the person as who
passed the cheek taken from burglar premises upon
ized was based his observa
tions the time he received check. supports
The evidence the conclusion that
Marshall’s origin identification had an inde
pendent of the complained lineup.
By way of se pro brief
complains of the inclusion in the court’s
charge of burgla elements of the offense of
ry which are to be proved under 30.02(a)(1), supra. No objection was
voiced to charge the court’s at trial. We
find no fundamental error virture of the charge placing
court’s the additional burden of proving the State the building not open to the public entry and that
was made intent to commit a
theft. judgment is affirmed. Gerson, Dan B. Burkholder, Henry III, L.
Houston, for appellant. Holmes, Jr.,
John B. and Ro- Atty., Dist. Houston, Gutierrez, Asst. Atty., berto Dist. Huttash, Atty. Robert Alfred State’s Walker, Austin, Asst. for the Atty., State’s State.