Bonner v. State
| Decision Date | 08 January 1964 |
| Docket Number | No. 36374,36374 |
| Citation | 375 S.W.2d 723 |
| Parties | Fay William BONNER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
C. C. Divine, Houston, for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brought and Gene D. Miles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for burglary; the punishment, enhanced under Art. 63, Vernon's Ann.P.C., by reason of four prior convictions for felonies less than capital, life imprisonment.
The state's evidence shows that the state's witness Edgar Hall and his wife lived in a house at 8211 Mendez, in the city of Houston. On the night in question, while Hall and his wife were away from home, a neighbor, Marvin Monzingo, saw the lights come on in the Hall residence and observed the appellant moving around in the kitchen. Monzingo proceeded across the street to a neighbor's house and, after talking to the neighbor, the two went to the Hall premises. As they approached the side of the house they observed a screen off of a window which was open. They proceeded to shine a flashlight through the window into a bedroom and observed the appellant sitting on a bed with a mixmaster between his elgs. When they asked him what he was doing, he replied, 'Nothing.' They then left and the police were called. While they were waiting for the police to come, both appellant and his wife were seen to go from the Hall residence toward their house next door. At such time, appellant's wife was carrying a bundle. Thereafter, the officers arrived and placed appellant under arrest. It was shown that he did not have the consent of Hall to break and enter the house and that the windows and doors of the house were locked by Hall and his wife when they left the premises prior to the night in question. It was also shown that when the Halls returned home three days later they found a mixmaster and coffee pot on the floor in the bedroom, and, later, two of their bedspreads were seen in a bedroom of appellant's home.
Proof was made of the four prior alleged convictions by the introduction in evidence of certain duly authenticated record of the Texas Prison System and comparison of fingerprints in the manner approved by this court in Roberts v. State, 164 Tex.Cr.R. 537, 301 S.W.2d 154.
Testifying as a witness in his own behalf, appellant admitted entering the house on the night in question but gave as an explanation that his wife had gone into the house and brought to their residence a bundle of chattels, including a mixer and coffer pot, and that he had gone to the Hall house and entered through the open window to return the articles. Appellant swore that he had no intention to steal anything. He also admitted the four prior alleged convictions.
They jury by their verdict rejected appellant's testimony, and we find the evidence sufficient to sustain their verdict.
Under the decisions of this court, the very act of breaking and entering a house in the nighttime raises a presumption that it is done with intent to steal. Sikes v. State, 166 Tex.Cr.R. 257, 312 S.W.2d 524.
In submitting the issue of appellant's guilt to the jury, the court charged the jury, in substance, that if they found the appellant guilty of the alleged burglary and further found that he had been previously convicted of the four felonies less than capital, alleged in the indictment, they would find him guilty as charged, and in such event the form of their verdict would be:
'We, the Jury, find the defendant guilty as charged in the indictment, and that he has previously been convicted of four felonies less than capital, which said convictions had become final.'
The court further instructed the jury that if they had a reasonable doubt as to appellant's guilt of the burglary, as charged in the indictment, to find him not guilty.
The jury returned the verdict, set out in the court's charge, finding appellant guilty of the primary offense of burglary and that he had been previously finally convicted of the four felonies less than capital.
Appellant complains that, under the court's charge, the jury were not permitted to find him guilty only of the primary offense and assess his punishment at confinement in the penitentiary for a term of years of not less than two nor more than twelve.
Under the court's charge, the jury, before convicting appellant, were required to find not only that he...
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