Linton v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: BELCHER
• Citation: Linton v. State, 452 S.W.2d 494 (Tex. Crim. App. 1970)
• Decision Date: 11 March 1970
• Docket Number: No. 42648,42648
• Parties: Will LINTON, Appellant, v. The STATE of Texas, Appellee.

Page 494

452 S.W.2d 494

Will LINTON, Appellant, v. The STATE of Texas, Appellee.

No. 42648.

Court of Criminal Appeals of Texas.

March 11, 1970.

Rehearing Denied April 29, 1970.

Robert D. Peterson, Marlin, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The conviction is for burglary of a private residence at nighttime with the intent to commit the felony offense of fondling; the punishment, five years.

In his first ground of error the appellant complains that the trial court erred in overruling the appellant's motion to quash the indictment.

First, the appellant complains that the indictment does not allege that the female named therein was not the wife of the accused. Such an allegation is not essential to the validity of an indictment charging an offense under Art. 535d, Vernon's Ann.P.C. Griffin v. State, 159 Tex.Cr.R. 142, 261 S.W.2d 838.

Next, the appellant complains of the omission in the indictment of the preposition 'to' following the word 'intent' in the following phrase, '* * * with intent then and there unlawfully * * *.' In its brief the state concedes that the use of the word 'to' as pointed out would have been better grammatically, but contends that such failure did not mislead the appellant. The omission of a word is not fatal if the word omitted is not essential to the certainty necessary in the description of the offense and does not affect the meaning. Stephens v. State, 69 Tex.Cr.R. 437, 154 S.W. 996. The indictment in this case is sufficient to apprise the appellant of the offense with which he is charged. The appellant's first ground of error is overruled.

Appellant's second ground of error complains of the trial court overruling his motion for an instructed verdict on the ground that the state failed to prove the appellant was the person who made the alleged unlawful entry. The court charged the jury on circumstantial evidence. The complaining witness, although she never saw the appellant's face, described the persons who entered her bedroom about 11:30 p.m., to the investigating police officers, as a colored person, barefooted and wearing an orange sweatshirt and knee high pants. Later that night the complaining witness identified the appellant, a Negro male, barefooted and wearing an orange or yellow short-sleeved sweatshirt, short-legged brown pants, when the officers brought him to her house a little after midnight, as the man who was in her bedroom. At the trial the complaining witness identified the appellant as the man who was in her bedroom.

Two of appellant's alibi witnesses testified that he was wearing an orange shirt, short pants, and was barefooted, and another testified that he was wearing an orange shirt and...