LaPoint v. State

• Decision Date: 26 November 1986
• Docket Number: No. 227-86,227-86
• Citation: 750 S.W.2d 180
• Parties: Raymond Edmund LaPOINT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 180

750 S.W.2d 180

Raymond Edmund LaPOINT, Appellant, v. The STATE of Texas, Appellee.

No. 227-86.

Court of Criminal Appeals of Texas En Banc.

Nov. 26, 1986.

On Rehearing May 4, 1988.

John H. Hagler (on appeal only), Dallas, for appellant.

Henry Wade, Dist. Atty. and Anne B. Wetherholt, Royce West and Terence Hart, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of burglary of a building. Punishment was assessed by the jury at confinement in the Department of Corrections for 11 years and one day.

On appeal the Dallas Court of Appeals reversed the conviction due to a defective jury charge citing Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). LaPoint v. State (Tex.Cr.App. No. 05-84-0069 CR--1/4/85). We granted the State's Petition for Discretionary Review and remanded to the Court of Appeals for consideration of the error in the jury charge in light of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), decided after the original opinion of the Court of Appeals.

On remand the Court of Appeals withdrew its original opinion and turned its attention to other grounds of error. In another unpublished opinion the Court of Appeals again reversed the conviction holding that the trial court, over objection, had erred in instructing the jury that "the act of breaking and entering a building at nighttime raises a presumption that the act was done with the intent to commit theft." LaPoint v. State (Tex.App.--Dallas--05-84-00669 CR--12/30/85). We again granted the State's Petition for Discretionary Review to determine the correctness of this second holding of the Court of Appeals.

Appellant was convicted as a party to the offense of burglary committed by co-defendant Shockley. V.T.C.A., Penal Code, § 7.02. The co-defendant was convicted in a separate trial, but his conviction was reversed on appeal on the same basis as appellant's. Shockley v. State, 695 S.W.2d 754 (Tex.App.-Dallas 1985) (Pet. granted--still pending). Shockley was cited as authority for the action taken by the Court of Appeals in its second opinion.

At the guilt stage of the trial the court charged the jury in part as follows:

"Our law provides that the act of breaking and entering a building at nighttime raises a presumption that the act was done with the intent to commit theft. Such presumption is rebuttable.

"You are further charged (a) that the facts giving rise to the presumption must be proven beyond a reasonable doubt; (b) that if such facts are proven beyond a reasonable doubt you may find that element of the offense sought to presumed exists, but you are not bound to so find; (c) that even though you may find the existence of such element, the State must prove beyond a reasonable doubt each of the other elements of the offense charged; and (d) that if you have a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails, and you shall not consider the presumption for any purpose.

"So, in this case, before you may presume that Daniel Gaston Shockley, Sr. intended to commit theft, you must find from the evidence beyond a reasonable doubt that he had broken into and entered the building belonging to the complainant in the nighttime without the effective consent of the complainant, and if you have a reasonable doubt thereof, then the presumption fails and you will not consider such presumption for any purpose.

"If it is proven to you beyond a reasonable doubt that the said Daniel Gaston Shockley, Sr. did break and enter the building in question on the occasion in question at nighttime, Daniel Gaston Shockley, Sr.'s intent to commit theft may be presumed from these facts, but you are not bound to so find.

"Even though the existence of the intent to commit theft is found from the presumption raised by the facts stated in the preceedings (sic) two paragraphs, the State must prove to you beyond a reasonable doubt each of the other elements of the offense charged as well.

"If you have a reasonable doubt that Daniel Gaston Shockley, Sr. did in fact break and enter the building in question on the occasion in question at nighttime, then the presumption fails and you shall not consider the presumption for any purpose."

It is obvious that the trial court sought to charge in accordance with V.T.C.A., Penal Code, § 2.05.

Appellant objected and expressly pointed out that § 2.05 applied only to a presumption with respect to any fact established by the Penal Code itself "or another penal law" and that the "presumption" involved was not so established nor was such a charge authorized by case law. The objection was overruled.

Appellant was charged with burglary of a building under V.T.C.A., Penal Code, § 30.02(a)(1), which provides:

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

"(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or...." (Emphasis supplied.)

Intent, as an essential element of the offense of burglary, must be proved by the State beyond a reasonable doubt; it may not be left simply to speculation and surmise. Greer v. State, 437 S.W.2d 558, 559-560 (Tex.Cr.App.1969). To find that burglary has been committed there must be evidence not only showing burglarious entry but also that the party at the time he entered had specific intent to commit theft or a felony as alleged in the burglary indictment. Greer, supra, at p. 560. Nothing in our burglary statutes or other statutes indicates that a presumption from the evidence arises with regard to proof of intent as an essential element of burglary. As a question of fact for the jury, however, intent may be inferred from the surrounding circumstances. Mauldin v. State, 628 S.W.2d 793, 795 (Tex.Cr.App.1982); Ortega v. State, 626 S.W.2d 746, 749 (Tex.Cr.App.1982); Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978); Williams v. State, 537 S.W.2d 936 (Tex.Cr.App.1976); Hawkins v. State, 467 S.W.2d 465 (Tex.Cr.App.1971). See also Wilson v. State, 658 S.W.2d 615 (Tex.Cr.App.1983); Goswick v. State, 656 S.W.2d 68 (Tex.Cr.App.1983); Coberly v. State, 644 S.W.2d 734 (Tex.Cr.App.1983).

There, of course, is no question that a prosecutor may argue as a deduction from the evidence that intent to commit theft can be inferred from entry at nighttime without consent.

A number of cases have held that an entry made without consent in the nighttime is "presumed" to have been made with intent to commit theft. See Mauldin v. State, 628 S.W.2d 793, 795 (Tex.Cr.App.1982); Solis v. State, 589 S.W.2d 444, 446 (Tex.Cr.App.1979); Moss v. State, 574 S.W.2d 542, 544 (Tex.Cr.App.1978); Clark v. State, 543 S.W.2d 125, 128 (Tex.Cr.App.1970), and cases there cited. See also Williams v. State, 506 S.W.2d 868 (Tex.Cr.App.1974); Clayton v. State, 493 S.W.2d 526 (Tex.Cr.App.1973); Roberts v. State, 375 S.W.2d 303 (Tex.Cr.App.1964); Alexander v. State, 20 S.W. 756 (Tex.Cr.App.1892). Although there may be some question as to whether this was a presumption or simply a permissible inference most of the cases applying the principle have done so in review of questions of sufficiency of the evidence. At the trial level the principle may come into play upon presentation of a motion for an instructed verdict or a hearing on a motion for new trial. Thus it has been a trial vehicle as well as an appellate vehicle to review the sufficiency of evidence. Cf. Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Cr.App.1985). ¹

The evidentiary "presumption" or permissive inference was never intended to relieve the prosecution of proving every element of a crime beyond a reasonable doubt or to be used in a jury charge for that purpose. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985).

Only recently in Browning v. State, 720 S.W.2d 504 (Tex.Cr.App. 1986), this Court held that instructing a jury on such "presumption" or inference was error and wrote:

"... In any given case the jury could make any number of reasonable inferences. But when the trial court, the only source of the law the jury has, picks out only one such inference and instructs the jury that that one, though rebuttable, is a presumption provided by law, the court gives the force of law to that one possible inference. In fact neither statute nor caselaw provides such a 'presumption' at the trial level. Instructing the jury that it does constitutes, in effect, a comment on the weight of the evidence. We do not hold that the jury may not make such an inference, nor that an appellate court in reviewing the sufficiency of the evidence may not assume that the jury made such a reasonable inference. The error lies in instructing the jury that they may apply such an inference." (Footnote omitted.) Also see Mercado v. State, 718 S.W.2d 291 (Tex.Cr.App.1986).

There can be no question that the trial judge erred in overruling appellant's objection and charging on the "presumption" or inference to which V.T.C.A., Penal Code, § 2.05, was not applicable by its very terms and which was not authorized by case law. The charge was also an improper comment on the weight of the evidence. We thus agree with the Court of Appeals as to the error in the charge. We must now determine whether the appellant has suffered "some harm" as a result of the objected to error in the charge. Almanza v. State, supra. ² The Court of Appeals did not expressly apply Almanza but cited Shockley as the basis for reversal. Shockley did discuss and apply Almanza.

Stuart Harris, owner of the Orchard Hill Pharmacy in Garland, testified that normal store hours were from 7 a.m. to 10:30 p.m. On October 27, 1982, he secured the store at the normal closing time and checked the locks. After midnight on October 28, 1982, he was summoned to the building which had...