Lopez v. State

• Decision Date: 16 November 1971
• Docket Number: No. 44244,44244
• Citation: 472 S.W.2d 771
• Parties: Bellen LOPEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 771

472 S.W.2d 771

Bellen LOPEZ, Appellant, v. The STATE of Texas, Appellee.

No. 44244.

Court of Criminal Appeals of Texas.

Nov. 16, 1971.

James K. Edward, Odessa, for appellant.

John H. Green, Dist. Atty., and J. A. Bobo, Asst. Dist. Atty., Odessa, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for burglary with intent to commit theft, with the punishment, enhanced under the provisions of Article 62, Vernon's Ann.P.C., being assessed at 12 years.

Appellant contends that the indictment is fundamentally defective in that it contained no description of the property to be taken.

Appellant acknowledges that there was no motion to quash the indictment filed and that earlier 'cases dictate that a burglary indictment need not describe property alleged to have been taken,' but contends 'these cases should be overruled and a more logical, fair and reasonable attitude towards indictment for the crime of burglary with the intent to commit theft' be substituted. We decline to do so.

'The very nature of the offense of burglary renders it unnecessary in an indictment for burglary to describe therein the property intended to be stolen.' 4 Branch's Ann.P.C., 2d ed., Sec. 2521, p. 839.

'It is the intent, and not the character or value of the article stolen after the burglarious entry, which characterizes and makes the offense of burglary complete.' 4 Branch's Ann.P.C., 2d ed., Sec. 2535, p. 863.

'Under the statutes, an intention on the part of the accused to commit either a felony or theft, coupled with unlawful entrance, constitutes the crime of burglary. The intent with which the entrance was made is an essential element of the crime * * * actual commission of the contemplated crime need not be established. The accused may be found guilty of burglary although no property was taken and no felony was committed.' 10 Tex.Jur.2d, Buglary, Sec. 30, p. 186. See also Ash v. State, Tex.Cr.App., 420 S.W.2d 703; Martin v. State, 148 Tex.Cr.R 232, 186 S.W.2d 80; Dimery v. State, 156 Tex.Cr.R. 197, 240 S.W.2d 293.

Appellant's initial contention is overruled.

Next she challenges the sufficiency of the evidence to sustain her conviction as to the primary offense.

Johnny Branson, owner of Oil Field Truckers, Inc., testified he locked and secured the office building of that company in Ector County between 5:30 and 6 p.m. on September 16, 1969. Driving past his building about 10:30 p.m. he saw law enforcement officers there, he stopped and discovered the building had been broken into and entry gained through a restroom window. He related that some checks, check stubs, receipts, petty cash change and Coke machine change had been taken by someone without his consent. Branson testified a company check made payable to John Morrison and dated June 4, 1969, had been taken from his middle desk drawer. This check was marked State's Exhibit #1. He testified that Morrison, an employee, had died on June 6, 1969, and that he simply retained the check until locating the next of kin.

Olive Gardner, bookkeeper for Oil Field Truckers, Inc., corroborated Branson's testimony that the Morrison check was in the desk drawer and she had seen it there on the afternoon of September 16. About 9:45 p.m. on that date she received a telephone call and had gone to the A. L. Davis grocery store where she was shown the check made payable to Morrison and observed that the checks had been endorsed, there having been no endorsement on the check earlier in the day.

Carlos Marie Baker, an employee of the Davis grocery store, testified the appellant came to the store about 10 p.m. on September 16, 1969, and after picking out some groceries and cigarettes asked her to cash the check marked for identification as State's...