Lewis v. State
| Decision Date | 14 April 1982 |
| Docket Number | No. 2-81-104-CR,2-81-104-CR |
| Citation | 631 S.W.2d 813 |
| Parties | Ricky LEWIS, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Wm. Cary Quillin, Fort Worth, for appellant.
Tim Curry, Dist. Atty. and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for appellee.
Before HUGHES, RICHARD L. BROWN and HOLMAN, JJ.
Appeal is taken from conviction for burglary of a habitation. V.T.C.A. Penal Code sec. 30.02.
The punishment, enhanced by a prior felony conviction and assessed by the jury is imprisonment for ninety-nine years.
We affirm.
Appellant complains (1) of the sufficiency of evidence; that (2) he was prejudiced by the State's bolstering its own witness; and (3) the State was allowed to comment repeatedly on an exhibit not in evidence.
The indictment alleged that on December 5, 1978, the appellant did "intentionally and knowingly, without the effective consent of William H. Shelton, Jr., the owner thereof, enter a habitation with intent to commit theft." (emphasis added).
To qualify as a "habitation," a structure must be one that is adapted for the overnight accommodation of persons. V.T.C.A. Penal Code sec. 30.01(1).
Appellant concedes that the State's evidence tended to prove a criminal entry to the premises in question did occur on the date alleged.
Appellant argues, however, that there was no direct proof that the burglarized structure was adapted for the overnight accommodation of persons.
We disagree. In testimony, the owner of the burglarized structure described it as a "large one-bedroom apartment" and stated that the stolen property included a portable radio taken from the bathroom.
Police officer Duke testified that he had examined the entire apartment, including its bedroom.
The jury is the exclusive judge of the facts and weight to be given the testimony. V.A.C.C.P. art. 36.16 and 38.04; Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974).
We conclude the evidence was sufficient to prove that the structure was a "habitation" within the definition of sec. 30.01(1) and to sustain the jury's verdict.
Appellant's first ground of error is overruled.
In his second ground, appellant relies upon the general rule that the State may not bolster or corroborate the testimony of its witness, unless that testimony has been impeached or called into question. Lyons v. State, 388 S.W.2d 950 (Tex.Cr.App.1965).
The State's witnesses included Mrs. Hill, a neighbor to the burglarized apartment. She pointed to the defendant in the courtroom and identified him as the man she had seen approach the apartment with a crowbar and leave it carrying to his car a television set, microwave oven and other items on the day of the burglary.
Continuing her direct testimony, prior to being cross-examined, Mrs. Hill stated that, two days after the burglary, she had identified appellant in a police lineup.
Appellant incorrectly asserts that Mrs. Hill's testimony about the lineup improperly bolstered her previous testimony which had not yet been impeached or challenged.
It would have been error for a subsequent State's witness to bolster Mrs. Hills' unimpeached testimony by testifying that Mrs. Hill had indeed picked appellant out of a police lineup.
For Mrs. Hill to bolster her own unimpeached testimony, however, by stating that she had identified appellant in a lineup, is not error. Wyatt v. State, 566 S.W.2d 597 (Tex.Cr.App.1978).
The second ground of error is overruled.
The third ground complains that during the trial, the prosecutor made various references to a blue jacket which was not admitted as evidence.
The jacket was one of the items Mr. Shelton testified as having been taken in the burglary of his apartment.
At trial, Mr. Shelton identified a blue jacket...
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