Ortega v. State
| Decision Date | 08 December 1981 |
| Docket Number | No. 61233,No. 1,61233,1 |
| Citation | 626 S.W.2d 746 |
| Parties | Leonard Pete ORTEGA, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
J. Ronald Vercher, Houston, court appointed on appeal only, for appellant.
Carol S. Vance, Dist. Atty., and Alvin M. Titus and Ned Morris, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ROBERTS, CLINTON and McCORMICK, JJ.
This is an appeal from a conviction for burglary. Upon the appellant's plea of true to an enhancement allegation, the jury assessed punishment at confinement for fifty years.
In his first ground of error, the appellant contends that the evidence was insufficient to show that an entry took place. The appellant was charged with burglary of a habitation. V.T.C.A. Penal Code, Sec. 30.02(a)(1). The house was secured at the front by a screen door which had a latch and a wooden door which had a dead bolt lock. The appellant was seen prying with a screwdriver on the wooden door of the house. Further investigation revealed that the latch on the screen door had been pulled off and that there were pry marks on that door. It also revealed that the door knob on the wooden door had been disabled and that the dead bolt lock had pry marks on it. The owner of the house testified that both doors had been closed and locked when he had left for work that day. This evidence showed an entry into that part of the house between the screen door and the wooden door. Such an entry is sufficient to constitute an "entry" under V.T.C.A. Penal Code, Sec. 30.02. The first ground of error is overruled.
In his second ground of error, the appellant contends that it was reversible error to admit evidence of an extraneous offense to prove the appellant's intent to commit theft. Officer Terrell of the Houston Police Department testified that on March 15, 1977, he stopped the appellant for a traffic offense. He then discovered that there was an outstanding arrest warrant for the appellant in a burglary case. Pursuant to his arrest of the appellant, Terrell searched the appellant's van. He discovered a clock radio which further investigation showed had been taken during a burglary committed the day before. 1 The radio was admitted into evidence.
The victim of the March 14 burglary testified that his front door had been pried open by what appeared to be a large screwdriver. He identified the clock radio as his.
Before any of this testimony was introduced, the appellant made a motion in limine asking that the State be prohibited from introducing evidence of any extraneous offenses. The motion stated that identity was not an issue in the case and that the appellant had raised no defensive theory concerning motive or intent. The trial court overruled the motion and stated that the motion and ruling were sufficient for the appellant to have a continuing objection to the testimony. At the conclusion of the testimony the trial court instructed the jury as follows:
The court's charge to the jury contained a similar limiting instruction.
Despite these limiting instructions, we hold that it was reversible error to admit the testimony concerning the extraneous offense. As a general rule, it is well established
(citations omitted) (emphasis added).
Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App.1972).
Although the extraneous offense was relevant to the issue of the appellant's intent, we do not find that the appellant's intent was a contested issue. The appellant did not testify in this case, nor did he offer any defensive theory through other witnesses. He, therefore, did not put in issue the intent with which he entered the habitation.
The State argues that the extraneous offense was admissible to show intent because it was the State's burden to show that the appellant had the intent to commit theft at the time of his entry, citing Ruiz v....
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...and identify the accused with the particular offense charged. Genzel v. State, 415 S.W.2d 919 (Tex.Cr.App.1967); 3 Ortega v. State, 626 S.W.2d 746 (Tex.Cr.App.1981); 24 Tex.Jur.3d, Criminal Law, § 2027, pp. In discussing exceptions to the general rule Williams v. State, 662 S.W.2d 344 (Tex.......
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Table of cases
...911 (Tex. App.—Corpus Christi–Edinburg 2006, no pet.) - O - Texas Criminal Jury Charges C-34 Name Citation Court Section Ortega v. State 626 S.W.2d 746 (Tex. Crim. App. [Panel Op.] 1981) 8:480, 8:1170 Ortega v. State 668 S.W.2d 701 (Tex. Crim. App. 1983) 1:400, 13:100 Ortiz v. Quarterman 55......
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...“entry” may be made by simply prying open the outer screen door and making an effort to open the second, wooden door. Ortega v. State , 626 S.W.2d 746 (Tex.Crim.App. 1981). The manner of entry is not required to be alleged with specificity. Smith v. State , 652 S.W.2d 410 (Tex.Crim.App. 198......