Mauldin v. State, 60620

• Decision Date: 10 March 1982
• Docket Number: No. 3,No. 60620,60620,3
• Citation: 628 S.W.2d 793
• Parties: Roy Cornelius MAULDIN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 793

628 S.W.2d 793

Roy Cornelius MAULDIN, Appellant, v. The STATE of Texas, Appellee.

No. 60620.

Court of Criminal Appeals of Texas, Panel No. 3.

March 10, 1982.

W. John Allison, Jr., on appeal only, Dallas, for appellant.

Henry Wade, Dist. Atty. and Steve Wilensky & Mike Gillett, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, W. C. DAVIS and McCORMICK, JJ.

OPINION

McCORMICK, Judge.

Appellant was convicted of burglary of a building. Punishment was assessed by the jury at twenty years.

Although the facts are not in dispute, a brief recitation is needed. During the early morning hours of February 23, 1978, Horace West, warehouse supervisor for Bosco Fastening Service Center located in Dallas, received a call from the Smith Protection Agency. As a result of the call, West arrived at the warehouse at about 4:30 a. m. and saw the building surrounded by police. After he parked his car, he saw appellant being brought out of the building in the custody of police. Upon entering the building, West observed papers scattered about and a number of calculators, a radio, and other office equipment removed from their usual places and stacked upon desks and chairs.

Wallace Jones, a security patrol officer for Smith Protection Agency, testified that on the night of February 22, 1978, he had checked the warehouse at 8:45 p. m. and again at about 11:30 p. m., and all doors were closed and locked. When he checked the building again about 4:00 a. m. on the morning of February 23, 1978, he noticed one of the doors was partially opened and that there were pry marks on the door which had not been there previously. Upon entering the building through this open door, Jones noticed a lot of material on the floor and radioed for assistance.

Officer D. C. Sanchez, a Dallas police officer who responded to the burglary call, testified that following his arrival at the scene and while keeping the building under surveillance, he observed appellant attempt to leave the building through a back door, but that appellant saw him and returned into the building. Officer Allen Thompson, also of the Dallas Police Department, testified that he entered the building with a police dog, discovered appellant on top of a tier of shelves, and arrested appellant.

In his first ground of error, appellant contends that the evidence is insufficient to show that Don Sustaire was the owner of the building as alleged in the indictment. At trial, Don Sustaire testified that he was employed at Bosco Fastening Service Center. After identifying the building which had been burglarized, and testifying that the entry had been made on February 23rd without his effective consent, the following occurred:

"Q. (By Prosecutor) ... And for the record, by virtue of your position, you are the owner of that building, are you not?

"A. (By Mr. Sustaire) Yes, sir."

Appellant contends that since there is no evidence in the record to show that Sustaire had the care, custody, control and management of the building, the evidence is insufficient to show he was in fact the owner. In light of the testimony of Sustaire that he was the owner of the building, and in the absence of any evidence to the contrary, we hold the evidence sufficient to support the indictment.

In his second ground of error, appellant contends that the evidence is insufficient to sustain the conviction because there was no proof of intent 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.Cr.App.1979). Further, 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.Cr.App.1978); Solis v. State, 589 S.W.2d 444 (Tex.Cr.App.1979). 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. His second ground of error is overruled.

Appellant next contends that the prosecutor's argument that the law presumed an intent to steal under these circumstances was error. The argument complained of is as follows:

"(By Prosecutor): Now, using your common sense I would suggest to you that if that is all the evidence you have-and remember the presumption I told you about? The presumption of the intent to steal, the intent to commit theft? Now, it-if you think about it you know why we have that presumption, because good old common sense and reasonableness tells us that when you find somebody...