Armstrong v. State

• Decision Date: 17 November 1989
• Docket Number: No. 05-88-01106-CR,05-88-01106-CR
• Parties: Charles Dwight ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 937

781 S.W.2d 937

Charles Dwight ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.

No. 05-88-01106-CR.

Court of Appeals of Texas,

Dallas.

Nov. 17, 1989.

Rehearing Denied Dec. 29, 1989.

John D. Nation, Dallas, for appellant.

Patricia Poppoff Noble, Dallas, for appellee.

Before WHITHAM, McCLUNG and BAKER, JJ.

OPINION

WHITHAM, Justice.

Appellant appeals a conviction for burglary of a building with intent to commit theft. The trial court assessed punishment at twenty years confinement in the Texas Department of Corrections. In his sole point of error, appellant contends that the evidence is insufficient to support his conviction. We disagree. The State appeals also. We find no merit in the State's three cross-points. Accordingly, we affirm the trial court's judgment and dismiss the State's appeal under TEX.CODE CRIM.PROC.ANN. art. 44.01(a)(1) and (c) (Vernon Supp.1989).

Appellant's Appeal

First, we address the appellant's appeal. The appellant argues that the State failed to prove that appellant entered the building with the intent to commit theft. This is a circumstantial evidence case. It is not required that the circumstances should to a moral certainty actually exclude every hypothesis that the act may have been committed by another person, but that the hypothesis intended is a reasonable one consistent with the facts proved and the circumstances, and the supposition that the act may have been committed by another person must not be out of harmony with the evidence. Vaughn v. State, 607 S.W.2d 914, 921 (Tex.Crim.App.1980). The standard for reviewing the sufficiency of the evidence on appeal is the same for direct and circumstantial evidence cases; and that is to view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Garrett v. State, 682 S.W.2d 301, 304 (Tex.Crim.App.1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1876, 85 L.Ed.2d 168 (1985). Viewed in the light most favorable to the verdict, the record shows that Dennis Martinez saw a man, later identified as appellant, break into a retail store. At the time, Martinez was conducting a business meeting. Martinez heard a banging sound outside the premises and then a crash. Martinez went outside to inspect and saw that appellant had just kicked in the door of a hair salon in the next building. Martinez yelled, "What are you doing?" Appellant quickly walked away. The police were notified immediately, but apparently they passed the building without stopping. As Martinez waited for the arrival of the police, he saw appellant again. This time appellant was "kind of looking" at him "for some reason." At that point appellant was carrying something which Martinez did not identify. Martinez observed appellant walk across the street looking back. Martinez called the police again. Martinez watched as appellant threw a brick through the window of a garden center or plant nursery located in the same area. After appellant threw the brick through the window, appellant proceeded to climb into the nursery. Martinez got into his car and drove up to the nursery. Martinez removed his baseball bat from the trunk of his car and ordered appellant to stay in the building until the police arrived. It appeared to Martinez that appellant saw his head lights coming toward the building and was starting to climb out of the building. Evidently, appellant decided to stay inside the building as Martinez approached him. Appellant stayed there until the police arrived. The nursery had been closed for business for the day. Martinez described the time of the offense as follows: "It was in the evening before sunset. Right about sunset."

Steven King testified at trial that on May 10, 1988, he was employed at the nursery as manager of the landscape division with care, custody, and control of the equipment and merchandise in that office. That night a police officer called him and asked him to come to the nursery to secure it. When he arrived at the scene, appellant was being held in the squad car. King walked through the broken window of the building to inspect the premises. It appeared to King that someone had been going through his desk drawers and had moved the recorder on his desk. Things in the desk drawer appeared to be "shuffled through." King did not give appellant permission to go through his desk or break into the window or enter the building. King had a greater right to possession of the building than the appellant.

At this point in trial, appellant's attorney agreed to the stipulation of evidence regarding the arresting officer's testimony which would have been presented at trial. The stipulated testimony was admitted into evidence. The testimony of Officers Plachesis and Hackbarge was that on the evening of the offense they were dispatched to the burglarized premises at approximately 9:00 p.m. They arrested appellant in the premises. Their visual inspection of the building led them to conclude "the desk drawers of the office had been gone through."

We conclude that appellant's physical presence in the building at the time of his apprehension is prima facie proof of appellant's entry of the building. The question of the intent with which a person enters a building is a fact question which the jury can resolve from the surrounding circumstances. Ortega v. State, 626 S.W.2d 746, 749 (Tex.Crim.App.1981). In the present case, the jury heard the circumstances of the condition of the contents of King's desk drawer and the moving of the recorder on his desk. We conclude, therefore, that the jury drew the inference from these surrounding circumstances that appellant entered the building with the intent to commit theft. Indeed, no other reasonable inference is supported by the evidence. Testifying in his own behalf, appellant stated he could not remember much about the burglary because he was drunk at the time and did not know what he had been doing inside the nursery. Consequently, we conclude that in the present case any rational trier of fact could have found the essential elements of burglary of a building with intent to commit theft from the evidence beyond a reasonable doubt. We reason that the cumulative force of all the incriminating circumstances was sufficient for the jury, as the trier of fact, to decide, as they did, that appellant was guilty beyond a reasonable doubt of the offense with which he was charged. See Vaughn, 607 S.W.2d at 921. We conclude, therefore, that the evidence was sufficient to support the conviction. We overrule appellant's sole point of error.

The State's Appeal

Next, we consider the State's appeal pursuant to the provisions of TEX.CODE CRIM.PROC.ANN. art. 44.01 (Vernon Supp.1989). In its first cross-point, the State contends that the trial court erred in allowing an impermissible collateral attack on the sufficiency of the evidence to support appellant's prior conviction. In its second cross-point, the State contends that the failure of the record to contain a transcription of the proceedings before the magistrate on a prior conviction does not render the trial court's judgment void. In its third cross-point, the State contends that the trial court erred in finding as a matter of law that the appellant's conviction alleged in the second paragraph of the indictment could not be used for enhancement purposes. Article 44.01 states:

(a) The state is entitled to appeal an order of a court in a criminal case if the order:

(1) dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint;

(2) arrests or modifies a judgment;

(3) grants a new trial;

(4) sustains a claim of former jeopardy; or

(5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case.

(b) The state is entitled to appeal a sentence in a case on the ground that the sentence is illegal.

(c) The state is entitled to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the judgment.

TEX.CODE CRIM.PROC.ANN. art. 44.01 (Vernon Supp.1989).

Although the State carefully avoids any challenge to the trial court's fact finding in its judgment of "not true" to the second enhancement paragraph, our disposition of the State's appeal focuses our efforts on the trial court's fact finding in its judgment that the enhancement allegations in the second paragraph of the indictment were "not true." The problem scenario originates in the criminal court magistrate practice utilized in Dallas County. The State relied upon its Exhibit No. 8 to prove the prior felony conviction alleged in the second paragraph. (This prior conviction had been referred to a magistrate). To show what then transpired we quote the State's brief in order that we present subsequent events in the light tendered by the State:

During the trial of the instant case, the defense objected to the admission of proof of the prior conviction alleged in the second paragraph of the indictment. (R.III-12). The grounds on which the objection was based were stated as follows:

... No statement of facts was prepared in this case either prior to or subsequent to Judge [ ] signing the judgment in the case.

* * * * * *

... Omura was exactly the case that we had before us today, a district judge reviewing plea papers but without any statement of facts or guidance by a--a judge can receive from the findings of facts and conclusions of law. All the Judge had before him were the plea papers which are nothing more than plea papers. It's no evidence of any hearing of what was said or done at that hearing and for that reason Judge [ ] as was the custom at that time made--did...