Macias v. State

• Decision Date: 16 January 1986
• Docket Number: No. A14-85-384-CR,A14-85-384-CR
• Citation: 704 S.W.2d 484
• Parties: Edward MACIAS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 484

704 S.W.2d 484

Edward MACIAS, Appellant, v. The STATE of Texas, Appellee.

No. A14-85-384-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Jan. 16, 1986.

James Lemond, Houston, for appellant.

John Holmes, Jr., Dist. Atty., Dinah Bailey, Bryan Lyn McClellan, Asst. Dist. Attys., Houston, for appellee.

Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.

OPINION

ELLIS, Justice.

Appellant, Edward Macias, appeals from a judgment of conviction for the felony offense of burglary of a building, enhanced by one prior felony conviction. The jury found appellant guilty and after finding the enhancement paragraph true assessed punishment at seven years confinement in the Texas Department of Corrections. Appellant raises three (3) grounds of error on appeal. We affirm.

In his first two grounds of error, the appellant attacks the sufficiency of the evidence to prove: (1) the appellant entered the building and (2) that the appellant intended to commit theft. In the third ground of error, the appellant alleges the trial court erred in admitting into evidence State's exhibits 2-8 without first allowing Defense Counsel the opportunity to inspect them.

Triah Dang Bui, the owner of Dave's Food Market located at 4401 Harrisburg, Houston, Texas, testified that on the evening of January 25th, 1985, he closed the store at 8:00 p.m. and turned on the burglar alarm which is operated by Crime Control Inc. At two o'clock in the morning of January 26th, 1985, Crime Control called Mr. Bui to inform him that the burglar alarm had been set off. Upon arriving at his store, Mr. Bui noticed that items in his store had been moved from their usual place. Mr. Bui testified that a portable radio had been moved and a hammer and a screwdriver had appeared. Mr. Bui found two holes in his two-story building. He testified that there was a hole in the roof and another one in the ceiling of the first floor, leading to the second floor. The evidence showed that both holes were large enough for a person to climb through. A hammer and a screwdriver were found on the roof next to the hole. Behind the store showcase on the first floor, Mr. Bui found two empty "Snoopy" watch boxes laying on the floor. Normally, the watches were displayed in the showcase.

Two Houston police officers, Wesley Lewis and Allan Bates, testified that they arrived at Dave's Food Market in response to a call from the police dispatcher. The burglar alarm was still sounding when the officers arrived.

After investigating the scene and conversing with an officer in a police helicopter, above the store, the officers were under the impression that no one was inside the store. As the officers were leaving the store's parking lot, they noticed the appellant leap to the ground from the complainant's building. The two policemen proceeded to chase the appellant and were successful in apprehending him. Upon apprehension, the appellant uttered the statement, "I give up." When found, the appellant had two screwdrivers and two "Snoopy" watches in his pant pockets. Mr. Bui identified the "Snoopy" watches as the two that were stolen from his store. The appellant did not present any evidence at trial.

In his first two grounds of error, the appellant attacks the sufficiency of the evidence to prove: (1) that the appellant entered the building and (2) that the appellant intended to commit theft.

The standard for review in circumstantial evidence and direct evidence cases is the same--whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Carlen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2789, 61 L.Ed.2d 560 (1974).

The trier of fact in this case must decide whether the facts as presented are sufficient to prove that the appellant entered Dave's Food Market on the night in question with the intent to commit theft. The evidence shows that the appellant was seen jumping off the complainant's building. At the time of his apprehension he was found to have two screwdrivers in his pocket. Also in his pockets, were two "Snoopy" watches, identified by Mr. Bui as belonging to him. Two empty "Snoopy" watch boxes were found on the floor behind the showcase inside the store. Additionally, one hole was made on the roof and another hole was made on the ceiling of the first floor. A hammer and a flashlight were found on the roof next to the hole.

In a case similar to the instant case, Hayes v. State, 656 S.W.2d 926 (Tex.App.--Eastland 1983, no pet.), the defendant was seen jumping from the roof of a building. In Hayes, supra, the police officers also found a hole, one foot in width, on the roof together with a tire lug wrench next to the hole with tar on the lug section. In Hayes supra, the court found that the evidence was sufficient to sustain a conviction.

The jury, in the instant case, could have properly concluded from the evidence that the screwdrivers were used by the appellant in making the hole in the roof of the store. It can be concluded from the evidence that the screwdriver was used as a chisel by hitting it with a hammer to create the holes in the roof as well as the ceiling.

In the second ground of error appellant alleges that the evidence is insufficient to prove that the appellant intended to commit theft. In a prosecution for burglary, the intent to commit theft may be inferred from the circumstances. Simmons v. State, 590 S.W.2d 137 (Tex.Crim.App.1979). An entry made without consent in the nighttime is presumed to have been made with intent to commit theft. Moss v. State, 574 S.W.2d 542 (Tex.Crim.App.1978). The appellant's entry into the building having been made in the nighttime without the consent of the owner is sufficient to show an intent to commit theft. Mauldin v. State, 628 S.W.2d 793 (Tex.Crim.App.1982).

The jury, in the instant case, found the circumstances overwhelmingly against the appellant. The combination of the appellant being seen jumping off the building, in the nighttime, carrying stolen property and burglary tools, satisfied the jury, and is sufficient to establish entry into the building with an intent to commit theft.

We find that the evidence presented in this case was sufficient to prove to a rational trier of fact beyond a reasonable doubt that the appellant entered the building with the intent to commit theft. Accordingly we overrule appellant's first two grounds of error.

In ground of error three appellant alleges that the trial court erred by admitting into evidence State's exhibits 2-8 without first allowing Defense Counsel the opportunity to inspect these items. The items constituting State's exhibits 2-8 consisted of: a metal part of screwdriver, a handle of screwdriver, a metal part of hammer, a flashlight, part of a screwdriver and two more screwdrivers. These items were found on the appellant's person and on the roof of Mr. Bui's building. The Texas Code of Criminal Procedure, article 39.14 states in part:

DISCOVERY

Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending may order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their...