McCardell v. State

• Decision Date: 19 October 1977
• Docket Number: No. 53627,53627
• Citation: 557 S.W.2d 289
• Court: Texas Court of Criminal Appeals
• Parties: Joseph I. McCARDELL, Appellant, v. The STATE of Texas, Appellee.

Page 289

557 S.W.2d 289

Joseph I. McCARDELL, Appellant, v. The STATE of Texas, Appellee.

No. 53627.

Court of Criminal Appeals of Texas.

Oct. 19, 1977.

Appellant's Motion for Rehearing Denied Nov. 16, 1977.

Joseph S. Presnall, III, Galveston, court appointed, for appellant.

Ronald L. Wilson, Dist. Atty., and Michael J. Guarino, Asst. Dist. Atty., Galveston, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

Joseph I. McCardell was convicted for burglary of a building. Punishment, enhanced under V.T.C.A., Penal Code, Section 12.42(d), was assessed at life. On appeal McCardell contends that the court should have charged on the defense of alibi and on a lesser included offense of criminal trespass; that V.T.C.A., Penal Code, Section 12.42, is unconstitutional; and that the "pen packets" of his prior convictions were improperly introduced. We overrule these contentions and affirm the conviction.

At about 11:15 p. m., August 21, 1975, police officers responded to a silent alarm from, and arrived within two or three minutes at, the Fact-O-Bake Paint and Body Shop in Galveston. They found that a large panel of the back door had been knocked out. Robert McCardell was found hiding on the floorboard of a car. Joseph McCardell, appellant, was on top of the spray room, about three and one-half feet below the roof of the building. He was covered with screening. The building had been locked by Rudy Aguilar, the owner, and no one was given permission to enter.

Herbert Lee Smith, called as a defense witness, testified that Joseph McCardell was at Herb's Ghetto Inn at about 11:00 o'clock on the night in question when Robert McCardell called Joseph. After they talked, Joseph said that he was going to get his brother.

Robert McCardell testified that he committed and had been convicted for, and that Joseph had nothing to do with, the present offense. He related that he called Joseph at Herb's Ghetto Inn and told him that he was working late at the paint and body shop for Rudy Aguilar. At Robert's request, Joseph came for him. When Joseph arrived, Robert let him in the front door. Joseph asked: "Where was Rudy at? I told him that Rudy had gone across the street to the La Rumba to get a sandwich and told me to close up the place. . . ." At about this time the officers arrived and Robert said that he ". . . had broke in the place" and told Joseph "to hide because the laws was coming in." They both hid and were later discovered and arrested. The jury chose not to believe Robert's testimony.

The request for the charge on alibi was properly denied. All of the testimony shows that appellant was in the burglarized building while the burglary was in progress. The testimony of Herbert Smith that appellant was at the inn and received a call from Robert does not raise the issue of alibi.

Appellant contends that the court erred in refusing to charge on a lesser included offense of criminal trespass. He relies upon Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976), which held that in a burglary prosecution the defendant was entitled to such a charge after he had testified that he entered the building without the consent of the owner but for an innocent purpose. That case is not in point.

All of the defensive testimony shows that appellant committed no crime at all because he was told that Robert was working for the shop owner in the building and Robert invited appellant to enter. There was nothing according to Robert's testimony that put appellant on notice that he did not have the effective consent of the owner to enter. In short, the proof shows that appellant committed the offense of burglary. He was guilty or not guilty of that offense.

In McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), this Court held: ". . . a charge on the lesser (included offense) is not required unless there is testimony raising such issue that appellant, if guilty, is guilty only of the lesser offense." See 4 Branch's Ann.P.C.2d, Section 1889, page 219. And see Torres v. State, 493 S.W.2d 874 (Tex.Cr.App.1973).

There is no testimony in the present case that would make appellant guilty of only the crime of trespass. No error is shown.

Appellant contends that V.T.C.A., Penal Code, Section 12.42, providing for enhancement of penalty where one has been previously convicted, is unconstitutional. That section is substantially the same as Article 63 of the former penal code. The same contention has been raised and overruled many times before. See Schultz v. State, 510 S.W.2d 940 (Tex.Cr.App.1974), and Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). It is again overruled.

Lastly, appellant urges that the court erred in admitting into evidence prison records of prior convictions not alleged in the indictment for enhancement because they showed extraneous offenses. Article 37.07, V.A.C.C.P., provides that such prior convictions are admissible even though they are not alleged in the indictment. No evidence of extraneous offenses other than those shown by the prior convictions was admitted. No error is shown.

The judgment is affirmed.

ROBERTS, Judge, dissenting.

In affirming the appellant's conviction the majority overrules appellant's second ground of error and holds that the trial judge did not err by refusing to charge the jury on the lesser included offense. I believe that the majority's disposition of this contention is not only wrong, but illogical. I would reverse.

I.

What follows is the opinion originally prepared and submitted to this Court by the Honorable Howard P. Green, Commissioner for the Court. I adopt it as Part I of my dissent.

"In a trial before a jury appellant was convicted of burglary of a building. V.T.C.A. Penal Code, Sec. 30.02(a)(1). Punishment, enhanced under the provisions of V.T.C.A. Penal Code, Sec. 12.42(d), was assessed at life.

"Appellant in his second ground of error complains of the court's refusal to submit to the jury instructions on the issue of the lesser offense of criminal trespass, as timely requested in writing. See Day v. State, (Tex.Cr.App.), 532 S.W.2d 302.

"The State's evidence reflects that at about 11:15 p. m. on August 21, 1975, police officers, responding to a silent alarm, went to the Fact O Bake Paint and Body Shop in Galveston, arriving there within 2 or 3 minutes after the alarm sounded at the dispatcher's office. They found a large hole in the back door of the building, caused by a panel of the door having been knocked out. A search of the interior of the building revealed Robert McCardell hiding on the floorboard of a car and appellant covered with screening on the top of the spray room, about 31/2 feet lower than the roof of the building. Rudy Aguilar, the manager of the paint and body shop in charge of and having custody, control and possession of the building and its contents, testified that the panel of the back door had been knocked out after he locked the door when he closed up the building about 5:00 that afternoon. The building, after it was closed for the day, was not open to the public, and neither of the McCardells had his effective consent to enter it on the night in question. Aguilar also testified there were six or seven cars in running condition and a large amount of valuable tools and other equipment in the building.

"Appellant did not testify. Defensive testimony was given by two witnesses substantially as follows:

"Herbert Lee Smith, proprietor of Herb's Ghetto Inn, Galveston, testified that at about 11:00 o'clock on the night in question appellant was in his bar when he received a telephone call from appellant's brother Robert McCardell. Smith had answered the phone, recognized Robert's voice, and called appellant to the phone. After talking a short while appellant left saying, as Smith remembered, he was going to get his brother.

"Robert McCardell, brother of appellant, testified substantially as follows: Prior to this trial, he had plead guilty to this burglary and received a twenty year sentence. He had previously been convicted of another burglary, for which he served time in the Texas Department of Corrections. Shortly before August 21, he went to the paint and body shop and asked its manager, Rudy Aguilar, for a job. He did not actually want a job there, but wanted 'to see if there was some things up in there I wanted, I knew I could make me some money for.' About 7:35 p. m. August 21 while across the street at a coffee shop, he called appellant at the Herb Ghetto Inn and told him he was working late for 'Rudy' and 'to come and pick me up and take me home.' He had earlier told appellant he was working there. He then went across the street to the paint and body shop and broke a hole in the back door. His intention was 'to take some of the items out of the place and stash them in the alley, then later on that night when Joe (appellant) took me home I was going to get my brother's car and come back and pick up the items early in the morning.' After entering the building he went to the front door and opened it. Appellant was there, and asked 'where was Rudy at? I told him that Rudy had gone across the street to the La Rumba to get a sandwich and told me to close up the place because he received a phone call.' Appellant entered the building, the police officers arrived, and the witness told appellant he 'had broke in the place' and 'to hide because the laws was coming in.' They both hid, and were later discovered by police and arrested.

"The witness testified further:

'Q Did Joe McCardell, your brother sitting here, have anything to do with that burglary down there?

'A No, sir.

'Q Whose idea was it?

'A It was my idea.

'Q He had nothing to do with it?

'A No, sir.

'Q When he came there that evening did he know you were burglarizing that place?

'A No.'

"The principle of law has been well established by the decisions of this Court that if the evidence adduced at the trial raises an issue of fact, and a charge on that issue is...