Garcia v. State
| Decision Date | 11 October 1978 |
| Docket Number | Nos. 58046-58048,No. 2,s. 58046-58048,2 |
| Citation | 571 S.W.2d 896 |
| Parties | Mary GARCIA, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Bobby R. Taylor, Austin, for appellant.
Ronald Earle, Dist. Atty. and Bill White, Asst. Dist. Atty., Austin, for the State.
Before ONION, P. J., and DALLY and VOLLERS, JJ.
This is an appeal from an order revoking probation.
On December 22, 1975 the appellant entered pleas of guilty before the court to three indictments, two charging burglary of a habitation and one charging unauthorized use of a vehicle. Punishment was assessed at ten (10) years' imprisonment on each case, but the imposition of the sentences was suspended and the appellant was placed on probation in each case. Among the conditions of probation were the requirements that appellant commit no offense against the laws of this state or any other state of the United States and that appellant avoid injurious or vicious habits, including the use of narcotic or habit-forming drugs and alcoholic beverages.
On May 11, 1976 the State filed motions to revoke probation alleging the appellant had committed the offense of burglary of a habitation with intent to commit theft on or about April 13, 1976, and further had violated her probation to avoid injurious or vicious habits in that her urine specimen submitted on March 17, 1976 was found to contain opiates.
On June 4, 1976 the court conducted a hearing on said motions, and at the conclusion of the same probation in each case was revoked, but the punishment was reduced in each case to five (5) years' imprisonment prior to sentencing. Notice of appeal was given.
While the trial court did not announce its findings orally, the written order revoking probation reflects that revocation was based on the commission of a burglary of a habitation with intent to commit theft and that appellant's urine specimen submitted on March 17, 1976 was found to contain opiates.
On appeal appellant complains the evidence was insufficient to sustain revocation on the basis of the alleged burglary because the State attempted to reduce the offense alleged to theft.
At the revocation hearing the prosecutor orally stated, "We will go on theft . . . ." There was no amendment of the motion to revoke. 1 Thereafter, the court informed the appellant at the motion to revoke alleged burglary of a habitation with intent to commit theft included the charge of theft.
Then the record reflects the following:
The evidence then offered pertained to theft and no evidence was offered to show a burglary of a habitation.
Under the former Penal Code (1925) theft was not a lesser included offense of burglary with intent to commit theft. Hardin v. State, 458 S.W.2d 822 (Tex.Cr.App.1970). As noted in Hardin, The offense of burglary with intent to commit theft may be complete whether any theft ever occurs or not. See also Martin v. State, 148 Tex.Cr.R. 232, 186 S.W.2d 80 (1945); Article 1389, V.A.P.C. (1925). 2
In 4 Branch's Ann.P.C., 2d ed., § 2535, p. 863, it was written:
"It is the intent, and not the character or value of the article stolen after the burglarious entry, which characterizes and makes the offense of burglary complete."
In Franks v. State, 516 S.W.2d 185 (Tex.Cr.App.1974), the revocation motion alleged the commission of a burglary on or about November 11, 1973, prior to the effective day of the current Penal Code. After a hearing, the trial judge orally stated he was revoking probation on a finding of theft. In reversing that case on appeal, this court observed that theft was not a lesser included offense of burglary, and since theft was not alleged in the revocation motion, the revocation could not be sustained on that basis. The court noted that the written order of revocation reflected the revocation for the offense of burglary rather than theft, but the evidence was insufficient to show burglary, hence the reversal.
V.T.C.A., Penal Code, § 30.02 (Burglary), provides in part:
The statute thus provides for (1) burglary with intent to commit felony or theft, (2) burglary by remaining concealed, and (3) burglary by committing or attempting to commit a felony or theft.
The third mode of burglary above could well include the commission of theft, but the revocation motion in the instant case alleged the first mode of burglary above. The elements of that mode of burglary are: (1) a person, (2) without the effective consent of the owner, (3) enters a habitation or building, not then open to the public, with intent to commit a felony or theft.
As under the former Code, it can be readily seen that the offense of burglary in the first mode may be complete whether any theft ever occurs or not. If the burglarious entry is made with the intent to commit a felony or theft, the offense is complete whether any felony or the crime of theft ever subsequently happens.
Article 37.09, V.A.C.C.P., as amended in 1973, provides:
It is clear from the above that theft is not a lesser included offense of burglary of the first mode. We so hold. Therefore, theft is not a lesser included offense of the burglary alleged in the revocation motion. Here, the State attempted to reduce the offense charged as...
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