Denison v. State

• Decision Date: 04 May 1983
• Docket Number: No. 64958,64958
• Citation: 651 S.W.2d 754
• Parties: Patrick DENISON, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 754

651 S.W.2d 754

Patrick DENISON, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 64958.

Court of Criminal Appeals of Texas,

En Banc.

May 4, 1983.

Rehearing Denied June 22, 1983.

J. Thomas Sullivan, Dallas, for appellant.

Henry Wade, Dist. Atty. and Gregory S. Long, James Walker & Will Wilson, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

This is an appeal from a conviction for burglary of a habitation. Punishment is ten years imprisonment.

Appellant advances seventeen grounds of error on appeal. Appellant asserts that: (1) the evidence is insufficient to support the conviction and that the trial court erred by overruling appellant's motion to quash the indictment for failing to allege: (2) the situs of the offense: (3) the name of the person appellant intended to rape, and (4) the requisite mental state. Further, appellant asserts the jury charge was defective in failing to instruct on: (5) the lesser included offense of criminal trespass, (6) the lesser included offense of indecent exposure, (7) the law regarding voluntary acts as a basis for an offense, and (8) on the defensive issue of insanity. Appellant contends the trial court erred by: (9) admitting inculpatory oral statements of the victim, (10) by improperly stating the law regarding probation in overruling appellant's objection to improper questioning, and (11) by permitting the state to question the appellant regarding his understanding that he would not go to jail if the jury granted probation. Appellant maintains the trial court erred further by overruling his objections to portions of the state's jury argument which: (12) were directed at appellant's counsel, (13) stated appellant had "terrorized" other persons not present in the trial, (14) referred to "rape" being a violent crime when appellant was not indicted for rape, (15) made reference to the offense as being violent, (16) suggested that jurors should "get a gun" if they recommended probation, and (17) urged the expectations of the community in arguing for punishment.

Appellant challenges the sufficiency of the evidence. Specifically, appellant asserts that the state failed to demonstrate, beyond a reasonable doubt, that the appellant possessed the requisite intent to commit rape as alleged in the indictment.

The appellant was indicted for burglary of a habitation under V.T.C.A. Penal Code, Section 30.02(a)(1). The applicable section of the penal code provides in pertinent part:

"Sec. 30.02. Burglary (a) A person commits an offense if, without the effective consent of the owner, he:

"(1) enters a habitation, or a building ... not open to the public, with intent to commit a felony or theft." ¹

Where the sufficiency of the evidence supporting a conviction is challenged, the evidence is viewed in the light most favorable to the verdict. The jury is the exclusive judge of the credibility and of the weight to be given to the evidence. Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974). The evidence presented at trial was sufficient to establish the requisite intent to commit the underlying felony, to-wit: rape.

On April 27, 1979, the victim, B____ J____ A____, went to bed at approximately 10:30 p.m. She testified that before retiring she locked both of the apartment doors. At approximately 1:00 a.m. she felt the bed move, waking immediately she saw a man "raising up off the bed." B____ J____ A____ immediately removed a gun from a table at the side of the bed and "put the gun in his chest." She then turned on a light and asked, "What are you doing here?"

Complainant then testified regarding the conversation which transpired between her and appellant:

"[PROSECUTOR]: I am going to ask you to repeat the language that person used to you and what did he say to you?

"A. You want me to say everything he said?

"Q. Everything you can remember.

"A. Well, he said that he had been watching me and that he loved me and that he knew I was waiting for him; that he wanted to fuck me and he was masturbating during this time and he just said a lot of things. Those are the things that stick out in my mind."

Clearly, the evidence is sufficient to demonstrate the appellant entered the habitation with the intent of raping the victim as alleged in the indictment. See Ford v. State, 632 S.W.2d 151 (Tex.Cr.App.1982). This ground of error is overruled.

Appellant contends in three grounds of error that the trial court erred by overruling his motion to quash because the indictment failed: to designate the address of the habitation; name of the intended victim, nor to allege an offense.

In an extensive review of the case law Judge Dally examined the particularity with which situs of an offense must be alleged under Section 30.02. Hodge v. State, 527 S.W.2d 289 (Tex.Cr.App.1975). In Hodge, supra, this Court held only the county need be alleged as the place where the offense was committed in a burglary indictment under Section 30.02. In the instant situation the indictment alleges the offense occurred in "Dallas County." The allegation of situs was sufficient and this ground of error is overruled.

Appellant complains that the trial court erred by overruling his motion to quash on the ground that the indictment failed to name the victim of the intended rape. The Dallas Court of Appeals has recently examined the necessity of alleging the victim's name when intended rape is the underlying felony under Section 30.02, Mixon v. State, 632 S.W.2d 836 (Tex.Cr.App.--Dallas) (Rehearing denied 1982) (Petition for Discretionary Review refused.) In Mixon, supra, the court noted:

"The additional information requested by appellant in his motion to quash, the rape victim's name, is evidentiary and not required for the notice or plea in bar. The offense of burglary under Art. 30.02(a)(1) is complete upon the act of entry with the intent to commit the named felony or theft, not the actual commission of the named felony or theft. Johnson v. State, 537 S.W.2d 16 (Tex.Cr.App.1976). Appellant was adequately aware of the offense charged, and what 'intent to commit' he was alleged to have when he entered the habitation. The fact of the eventual victim's name is merely part of the circumstances of proof which might have been brought by the State to prove its allegation in the indictment. We hold that the appellant had adequate notice to prepare his defense."

It is unnecessary to allege the name of the intended victim when rape is the intended felony named in a burglary indictment under Sec. 30.02, supra. This ground of error is overruled.

Appellant contends the indictment was defective in failing to allege an offense. Specifically the appellant asserts that the proper allegation of intent and mental state is absent. The appellant maintains that two distinct mental states are required and thus both must be alleged.

In Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976) this Court examined the allegation of a culpable mental state required under Sec. 30.02(a)(1). Writing for the Court, Judge Dally noted:

"V.T.C.A. Penal Code, Sec. 6.02, provides that a person does not commit an offense unless he intentionally, knowingly, recklessly or with criminal negligence engages in conduct as the definition of the offense requires. The conduct that is the gist of the offense of burglary in this case is the entry into the habitation with the requisite intent. The indictment alleges a culpable mental state with which the appellant entered the habitation; it alleges he entered the habitation 'with the intent to commit theft.' "

The indictment in the instant situation provides in pertinent part that the appellant:

"... did unlawfully, intentionally and knowingly enter a habitation without the effective consent of B____ A____, the owner thereof, with the intent to commit rape."

Clearly, under the rationale of Teniente, supra, the allegation of culpable mental state in the indictment sufficiently alleged the appellant's mental state. This ground of error is overruled.

Appellant asserts that the trial court erred by denying his request for jury instructions on the lesser included offenses of criminal trespass and indecent exposure.

Criminal trespass can be a lesser included offense of burglary of a building. Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976). However, merely because a lesser offense is included within the proof of a greater offense, a jury charge on the lesser is not required unless there is testimony raising such issue that the defendant if guilty, is guilty only of the lesser offense. McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974) (reh. den. 1974). In Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981) (reh. den. 1981) a two-step analysis was articulated in determining the necessity of including a charge on a lesser included offense:

"Thus, in determining whether a charge on a lesser included offense is required, a two-step analysis is to be used. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Eldred v. State, 578 S.W.2d 721 [ (Tex.Cr.App.1979) ]. This Court has consistently employed the two-step analysis in recent opinions dealing with the necessity of a charge on the lesser included offense." Royster v. State, supra.

In the instant case, while proving burglary of a habitation with intent to commit rape, the state proved appellant committed the offense of criminal trespass. However, the appellant did not present one scintilla of evidence. Therefore, there was no evidence presented at trial which showed that if the appellant was guilty, he was guilty of criminal trespass only.

Likewise, in proving the intent to rape in the instant situation, evidence was presented which would support a...