Harden v. State, 40315

• Decision Date: 03 May 1967
• Docket Number: No. 40315,40315
• Citation: 417 S.W.2d 170
• Parties: Charles HARDEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 170

417 S.W.2d 170

Charles HARDEN, Appellant, v. The STATE of Texas, Appellee.

No. 40315.

Court of Criminal Appeals of Texas.

May 3, 1967.

Rehearing Denied July 26, 1967.

John R. Lee, Kermit, for appellant.

A. R. Archer, Jr., Dist. Atty., Monahans, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Judge.

Arson is the offense; the punishment, four years.

The indictment, drawn under Art. 1304 of the Vernon's Ann.Penal Code, alleged that on or about the 31st day of May, 1965, the appellant did 'unlawfully and wilfully burn a house * * * occupied by and in the possession of Tom Fletcher * * *.'

At the trial, Fletcher, the prosecuting witness, testified that on the date alleged he operated a Kent service station in Ward County on the Grandfalls highway; that he maintained living quarters on the premises in an eight-by-fifty-foot trailer which, although equipped with wheels and tires on the hubs, was leveled and sitting on blocks. The trailer, consisting of a kitchen, living room, bath, and bedroom, was connected with sewer, water, and lights and had been occupied by the witness for seven months as a residence. The witness testified that on the night in question the appellant and Gene Summers came to his trailer house around 3 a.m. and wanted to buy some beer. He refused, and they left. Later they returned and 'hollered about some more beer.' He started to the door and was fired at twice by appellant with a pistol. Summers was heard to say to appellant: 'Why don't you burn him out?' A noise was then heard at the gasoline pump and fifteen minutes later a bottle of gasoline with a rag burning therein was thrown into a window, setting the trailer house on fire and burning it 'down.' Appellant's car was then driven away.

The witness Eugene Summers, who the court instructed the jury was an accomplice, testified that on the night in question he and appellant went to the service station, at which time appellant asked the prosecuting witness, Fletcher, if his wife was there and that when Fletcher replied 'no' appellant accused him of lying and they 'started shooting at each other.' The witness swore that he did not throw the bottle of gasoline in the trailer, but stated 'I guess it was Charles. I didn't see him throw it in but I reckon it was (sic).'

Appellant did not testify or call any witnesses.

The issue of appellant's guilt or innocence was first submitted to the jury, and upon return of the jury's verdict of guilty appellant elected to have the same jury assess the punishment. Thereupon, a hearing was had on the question of punishment as provided by Art. 37.07, subd. 2 of the 1965 Code of Criminal Procedure.

Nineteen grounds of error are urged by appellant in his brief filed with the clerk of the trial court.

In his first nine grounds, appellant urges that the evidence is insufficient to support the conviction.

He first insists that there was a fatal variance between the pleading and the proof because the indictment charged the burning of a house, as defined in Art. 1305, V.A.P.C., of the general arson statutes, and the proof showed the burning of a 'motor vehicle, or vehicle or trailer,' as denounced by Art. 1318 of the Penal Code. It is insisted that since the two statutes define separate offenses and prescribe different penalties the conviction cannot stand because of such variance. In support of his contention, appellant cites the opinion of this court in Loftis v. State, 157 Tex.Cr.R. 569, 251 S.W.2d 411, wherein it was pointed out that the decision in Luce v. State, 128 Tex.Cr.R. 287, 81 S.W.2d 93--holding that a cabin mounted upon an automobile and used as a place of residence constituted a house within the meaning of the burglary statute--had been rendered ineffective by the enactment of Art. 1404b, V.A.P.C., creating the separate offense of burglary of a motor vehicle and affixing punishment less than and different from that prescribed to the offense of ordinary burglary.

We do not construe the Luce decision as authority for holding that a trailer house mounted on blocks, such as the one in the instant case, is not a house within the meaning of the arson statutes. We hold that the trailer house in question, which was being used by the prosecuting witness as a residence, was a house within the meaning of Art. 1305, supra, and not a motor vehicle or trailer within the purview of Art. 1318, supra.

Nor do we agree with appellant's contention that the state's proof failed to show that the trailer house in question was a 'house' within the definition of Art. 1305, supra, because it did not show that the structure was 'enclosed with walls and covered.' While the state did not specifically inquire whether the structure was enclosed with walls and covered, the proof did show that the trailer house had been used by the prosecuting witness for seven months as a residence and that it had a door and windows. We deem the proof sufficient to show that the structure was enclosed with walls and covered. To assume otherwise would be unrealistic.

In his grounds of error $10 and $11, appellant insists that the state failed to prove venue.

The prosecuting witness testified that he operated the Kent service station located 'in Ward County, Texas,' and that he maintained living quarters in the trailer on the premises. When asked where the service station was located with reference to Monahans, Texas (the county seat), the witness replied that it was on 'Grandfalls Highway. * * * I think it's considered the 1700 block.'

Venue need not be proved beyond a reasonable doubt but may be proved by circumstantial as well as direct evidence. It is held that venue is sufficiently proved if from the evidence the jury may conclude that the offense was committed in the county alleged. Rippee v. State, Tex.Cr.App., 384 S.W.2d 717. The evidence adduced was sufficient to warrant the jury's conclusion that the offense was committed in Ward County.

We overrule appellant's grounds of error $12 and $13, wherein he contends that his conviction cannot stand because the testimony of the accomplice witness, Summers, was not sufficiently corroborated. The testimony of the prosecuting witness was corroborative of the accomplice's testimony and tended to connect appellant with the offense charged.

We also overrule appellant's grounds of error $14, $15, and $16, wherein he contends that the evidence fails to show that he set fire to the building. The testimony of the prosecuting witness and the accomplice, Summers, is sufficient to warrant the conclusion that he did. In this connection it should be noted that the court submitted the issue of appellant's guilt to the jury upon a charge on principals.

In his ground of error $17, appellant insists that the court erred in permitting the prosecuting witness to testify that he (appellant) fired the two shots at him because it constituted proof of an extraneous offense.

We perceive no error. Such testimony was admissible to establish appellant's ill-will toward the prosecuting witness, whose house was burned. 6 Tex.Jur.2d 218, Sec. 23.

Grounds of error $18 and $19 pertain to the court's instruction to the jury on the issue of punishment. It is first insisted that the court erred in refusing to grant a mistrial because the court, in informing the jury that appellant had elected that it assess the punishment, read to the jury that portion of Art. 37.07, subd. 2(b)...