Farris v. Texas

• Decision Date: 25 October 1950
• Docket Number: No. 24902,24902
• Citation: 155 Tex.Crim. 261,233 S.W.2d 856
• Parties: FARRIS v. TEXAS.
• Court: Texas Court of Criminal Appeals

Page 856

233 S.W.2d 856

155 Tex.Crim. 261

FARRIS v. TEXAS.

No. 24902.

Court of Criminal Appeals of Texas.

Oct. 25, 1950.

Rehearing Denied Nov. 29, 1950.

Charles W. Tessmer, Dallas, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was indicted for the robbery by assault of one, Leroy Franklin, in the first count of the indictment; and in the second count thereof, it was alleged 'that prior to the commission of the aforesaid offense by the said Iwana Clyde Farris, as charged in paragraph one hereof, he, the said Iwana Clyde Farris, on or about the 5th day of April, 1938, committed, and on the 26th day of April, 1938, was duly, legally and finally convicted of a felony, less than capital, to-wit: the offense of Burglary, an offense of the same nature as charged in paragraph one of the Indictment herein, in the Criminal District Court No. 2 of Dallas County, Texas, upon an indictment in cause No. 3868-B, styled the State of Texas v. Iwana Farris, * * *; that the said Iwana Clyde Farris is the same person as Iwana Farris,' etc.

The punishment assessed is confinement in the state penitentiary for life.

It is contended that this indictment is insufficient in that it fails to allege with what intent the prior alleged offense of burglary was committed, and that therefore it is not shown therein that the prior offense was one of like character to that of robbery, the present charge herein.

To break into and enter a house is no offense unless such breaking is accompanied by an intent to steal, or to commit a felony.

A copy of the indictment itself in Cause No. 3868-B, the prior conviction, is present in the record, and was shown to the trial court and sets forth that Iwana Farris was charged with burglary of the house of J. H. Winn with intent to steal.

Article 1389, Vernon's Ann.Tex. P.C., defines the offense of burglary as follows: 'The offense of burglary is constituted by entering a house by force, threats or fraud, at night, or in like manner by entering a house at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or the crime of theft.'

It is insisted that there are as many ways of committing a burglary as there are statutes defining felonies in the Code; but that the only burglary that partakes of the same nature and character as robbery relates to an intent to take corporeal personal property, and thus calls for an intent to steal before a burglary can be said to partake of the same nature and character as a robbery. This is a matter of law for the determination of the court. See Warner v. State, 118 Tex.Cr.R. 351, 42 S.W.2d 616; Brown v. State, 140 Tex.Cr.R. 133, 143 S.W.2d 775.

It may have been better pleading had the pleader alleged that the prior conviction herein set forth was for burglary with intent to steal; and by so doing there would have been no conflict relative to the fact that burglary with intent to steal and robbery by assault partook of the same nature and character, in that both related to the unlawful acquisition of another's property. However, it is not necessary that the allegation of a prior conviction should be alleged with the same particularity as the present charge. See Neece v. State, 62 Tex.Cr.R. 378, 137 S.W. 919; Williams v. State, 109 Tex.Cr.R. 450, 5 S.W.2d 514.

It is insisted by the State that the allegation in the indictment relative to the former conviction of burglary goes further than such a mere allegation and explains what kind of burglary the prior conviction was based upon, and that is, a burglary of like character to the offense of robbery.

We are offered a precedent for such holding in the case of Posey v. State, 148 Tex.Cr.R. 478, 188 S.W.2d 392, in which the accused was charged under Article 64, P.C., with having been previously convicted of an offense to which was affixed the penalty of death as an alternative punishment, his present offense being robbery with firearms and his prior offense being set forth as robbery and not containing the phrase 'with firearms.' In that case we held that since in order to have an alternative punishment of death in a robbery case, it was necessary that same be 'with firearms', the designation as that of robbery, which carried with it an alternative punishment of death, also necessarily carried with it robbery with firearms.

Reasoning therefrom, we are impressed with the idea that a burglary that was of like character to robbery would be a burglary with intent to steal, and is the only burglary that we can conceive of as being of such like character to robbery.

Taking into consideration the fact that the former conviction is but the recitation of an historical fact only for the purpose of an enhancement of the penalty and not a trial thereof, we are of the opinion that the appellant herein was properly put on notice of what offense his prior conviction consisted. See Whittle v. State, 147 Tex.Cr.R. 227, 179 S.W.2d 569; Strickland v. State, 115 Tex.Cr.R. 410, 28 S.W.2d 818; Warner v....