Garcia v. State, 42670

• Decision Date: 22 April 1970
• Docket Number: No. 42670,42670
• Citation: 453 S.W.2d 822
• Parties: Pedro GARCIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 822

453 S.W.2d 822

Pedro GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. 42670.

Court of Criminal Appeals of Texas.

April 22, 1970.

Walter G. Weaver, Donna, for appellant.

Oscar B. McInnis, Dist. Atty., Edinburg, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for burglary of a private residence at night; the punishment, seven years.

A summary of the evidence is taken from the State's brief, and is as follows:

'The State's evidence shows that on the date of the offense, Magin Rivas, the injured party, owned a grocery store and residence located a few feet apart in Donna, Hidalgo County, Texas. A few minutes before 8:00 P.M., Appellant was in the store near the back talking to the butcher, Adolfo Perez, who had known him many years. At that time he appeared to be drinking and was talking 'Pachuco language.' The butcher talked to him five or ten minutes, suggested he go home and returned to his work. Appellant had requested some beer; and when last observed by the butcher, he was about six or seven feet inside the store from a side door which led directly a few feet distance to a door of the Rivas residence. About fifteen minutes later, Mrs. Rivas entered the store and reported some one in their residence. Mr. Rivas, who was working in the store at the time, ran to his residence and discovered a person inside whom he identified in Court as being the Defendant. At the time, Appellant had on a coat and hat belonging to the injured party which were in the house. After a struggle in which Mr. Rivas struck the intruder in the back of the head with a pair of spurs, the Appellant, wearing the coat, ran out of the house by the same door at which he had apparently entered, and in doing so was seen and identified by the witness Adolfo Perez. The coat, a pack of beer and one of the injured party's shoes were recovered in the back yard of his residence. Mr. Rivas' hat which the Appellant was wearing, a matching shoe to the one found in the yard and a strange shoe which was tried and fit the Appellant in Court were found where the struggle occurred in the kitchen of the residence. About thirty minutes later, the Appellant was arrested in his automobile a short distance away. At the time of his arrest, he was barefoot, bleeding from two small puncture wounds on the back of his head and apparently, under the influence of alcohol. About three hours later, he was examined by a doctor who testified that the wounds were consistent with having been made with one of the spurs and that she did not observe anything unusual about Appellant's physical condition at that time.

'The Appellant admits that he was attacked, but denies that it occurred inside the Rivas residence. Rather, he testified that he was in the vicinity relieving himself when the attack occurred, and thereafter, he ran away.'

In the first ground of error, appellant complains that the capias issued recited that appellant be arrested to answer to an indictment charging him with 'Burglary PRNT', and that such capias was illegal.

Appellant was not prosecuted on the capias but on an indictment which charged him with the offense of burglary of a private residence at night. No evidence was obtained or admitted because of the capias. Assuming that the abbreviation 'PRNT' for private residence at nighttime made the capias insufficient, no injury or harm has been shown.

The first ground of error is overruled.

In the second ground of error, it is contended that there was jury misconduct and reversible error, because when the jury was deliberating on punishment, it sent in the following question to the court, 'At what per cent of his sentence would he be eligible for parole as a repeater?' ¹ The court recalled the jury to the courtroom and gave the following instruction:

'Ladies and Gentlemen of the Jury:

'In answer to your question, you are instructed that you are not to discuss among yourselves how long the accused will be required to serve the sentence. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor and are not to be considered by the Jury.'

The jury then returned a verdict of seven years. A like situation was presented in De La Rosa v. State, 167 Tex.Cr.R. 28, 317 S.W.2d 544, and it was held that the action of the court was proper. The asking of the question, by itself, does not show jury misconduct.

The second ground of error is overruled.

Complaint is made in the third ground of error that the court erred in entering a judgment reciting that the...