Robles v. State

• Decision Date: 15 February 1984
• Docket Number: No. 488-83,488-83
• Citation: 664 S.W.2d 91
• Parties: Freddy Albert Cardenas ROBLES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 91

664 S.W.2d 91

Freddy Albert Cardenas ROBLES, Appellant, v. The STATE of Texas, Appellee.

No. 488-83.

Court of Criminal Appeals of Texas En Banc.

Feb. 15, 1984.

Donald W. Rogers, Jr., Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr., Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of burglary of a habitation with intent to commit theft. The Court of Appeals affirmed the conviction. Appellant's petition for discretionary review was granted to consider appellant's challenge to the sufficiency of the evidence to prove entry with intent to commit theft as alleged.

The opinion of the Court of Appeals accurately summarized the facts shown at trial:

"On the morning of August 7, 1980, the appellant, by exhibiting a handgun and threatening the complainant, forced his way into the home of complainant, Richard Merrill, president of the First City National Bank of Houston. Once inside the house, the appellant pulled out a cassette tape player and played a tape explaining that appellant was part of a group and that the purpose of appellant's presence was to take Merrill to the First City National Bank in order to withdraw an unspecified sum of money. Unknown to appellant, the police had been called by Mrs. Merrill and when they arrived, the appellant attempted to escape with Mr. Merrill and Merrill's son. His escape attempt was thwarted by the police, however, and the appellant was persuaded to surrender to the police."

It is clear that appellant entered the habitation with intent to complete a criminal scheme that had as its ultimate purpose to obtain money from the First City National Bank. The resolution of the issue, i.e., whether the evidence proves the element of the burglary alleged that appellant entered with intent to commit theft, must be determined by the meaning of the burglary statute. V.T.C.A., Penal Code Sec. 30.02 provides in relevant part:

"A person commits an offense if, without the effective consent of the owner, he:

"(1) enters a habitation ... with intent to commit a felony or theft; ..."

Appellant contends burglary with intent to commit theft requires an intent to appropriate property from within the burglarized premises. The Court of Appeals held to the contrary:

"The burglary statute, Section 30.02(a)(1), of the Texas Penal Code, quoted above, does not specifically require an intent to commit theft from within the premises entered. While that would be the usual burglary situation, it is not the only one.

"The evidence did overwhelmingly show that the appellant had an intent to commit theft, namely, to appropriate a large sum of money from the First City National Bank by terrorizing Merrill, the President of the Bank. There can be no doubt that the appellant had this intent before he entered the Merrill house, since he used a pre-recorded tape to state his demand. Moreover, there is a clear connection between the entry and the intent to steal, since gaining entry was critical to the success of the appellant's plan to extort the money. Although this crime was far different from the usual burglary, the evidence was not at variance with the indictment or the requirements of § 30.02(a)(1) of the Penal Code. The appellant's first ground of error is overruled."

The following paragraph and citations constitute the entire argument by appellant presented to this Court on the issue under consideration:

"The Petitioner contends intent to commit theft means intent to steal from the burglarized premises. The Court of Appeals held § 30.02(a)(1) Penal Code included basically intent to steal from any location irrespective of connection with or proximity to the entered premises. This holding is overly broad and expansive of the motion [sic] originally contemplated by the Legislative [sic] in enacting said statute. See the following cases: Simms v. State, 2 Tex.App. (Tex.Cr.App.1877); Conoly v. State, 2 Tex.App. 412 (Tex.Cr.App.1877). Compare: Perkins v. State, 489 S.W.2d 412 [(Tex.Cr.App.1973) ]; Shipp v. State, 482 S.W.2d 870 [(Tex.Cr.App.1972) ]; Thurston v. State, , 103 S.W.2d 770 [(1937) ]; O'Brien v. State, , 11 S.W. 459 [(1889) ]; and Wilson v. State, 18 Tex.App. [270 (1885) ]."

First, we note that appellant mistates the holding of the Court of Appeals. That court did not hold that any intent to commit theft "irrespective of connection with or proximity to the entered premises" is sufficient. To the contrary, the Court of Appeals specifically held there was shown "a clear connection between the entry and the intent to steal, since gaining entry was critical to the success of the appellant's plan to extort the money."

We also find that none of the cases cited by appellant held that the intent to commit theft required for burglary means an intent to steal from the burglarized premises. The earliest case, however, does contain some language that appears to support appellant's position. In Simms v. State, 2 Tex.App. 110, the Court found reversible error for failure of the trial court to charge the law applicable to the case. In reaching this conclusion the Court examined recent amendments to the law of burglary, theft, and theft from a house:

"The appellant in this case was indicted and convicted for burglariously entering, by force and fraud, a dwelling-house, in the night-time, with the intent to commit the crime of theft of two bed-quilts, of the value of $10.

"Article 724 of the Penal Code (Pasc. Dig., Art. 2359) was amended by act of the fifteenth legislature, approved August 21, 1876, and which is to be found in Pamphlet Laws, 231. As amended, the law now reads as follows:

" 'The offense of burglary is constituted by entering a house by force, threats, or fraud, at night, or in like manner by entering a house during the day and remaining concealed therein until night, with the intent in either case of committing felony or the crime of theft.' The amendment consists in adding to the law as it previously existed the words 'or the crime of theft.'

"Doubtless the object of this amendment was to obviate any doubt or difficulty which might arise with regard to the crime of burglary, when considered in connection with two other acts passed by the same legislature, and all three of the acts approved on the same day (August 21, 1876).

"The first was 'An act to repeal Article 764' of the Penal Code (Pasc. Dig., Art. 2408), which defined and punished 'theft from a house' as a specific offense. Acts Fifteenth Legislature 233. The second was an act to amend Article 757 of the Penal Code (Pasc. Dig., Art. 2395). This latter act reads as follows:

" 'Sec. 1. Theft of property under the value of twenty dollars shall be punished by imprisonment in the county jail for a term not exceeding one year--during which time the prisoner may be put to hard work--and by fine not to exceed five hundred dollars, or by such imprisonment without fine.

" 'Sec. 2. That all laws and parts of laws in conflict with the provisions of this act shall be, and the same are hereby, repealed.' Acts Fifteenth Legislature, 242.

"Construing these three statutes together, it is apparent that the intention was to make the crime of burglary complete where theft was the purpose of the burglarious entry, without reference to the fact that the property was stolen 'from a house,' or whether the property stolen, or attempted to be stolen, was of the value of $20, or under, or whether it would be a felony or misdemeanor, to be ascertained and determined by value. In other words, to enter a house with intent to steal therefrom constitutes the crime of burglary under the law as it now is, without reference to the fact as to whether the theft would be a felony or not. As we have seen, 'theft from a house' is no longer a distinct offense--much less a felony--as known to our law. Cottenham v. The State, 1 Texas Ct. of App. 463."

Appellant apparently would read the words "to enter a house with intent to steal therefrom constitutes the crime of burglary" (emphasis added) to mean that it was necessary to show intent to steal therefrom in order to establish burglary. Taken in the context of the explanation being given in that opinion of the statutory changes that had been enacted, we do not agree with such an interpretation of Simms. To say that "to enter a house with intent to steal therefrom" is sufficient to constitute burglary does not mean an intent to steal therefrom is necessary to constitute burglary. In the setting of Simms we are of the opinion the Court was stating facts sufficient, not facts necessary, to constitute burglary.

In Thommen v. State, 505 S.W.2d 900 (Tex.Cr.App.1974), on appeal from a conviction for burglary under the former Penal Code, the Court stated:

"At common law, burglary was the breaking and entering of the dwelling of another, at nighttime, with intent to commit a felony therein. 12 C.J.S. Burglary § 1, p. 664 (1938). But, Texas has never adopted the common law definitions of crimes and offenses. Art. 3, V.A.P.C. From the earliest times, the offense of burglary has been defined by Texas statutes more broadly than at the common law."

We agree with the Court on Thommen and with the Court of Appeals in this case that the issue turns on the specific language of the burglary statute. As currently defined in Sec. 30.02, supra, burglary may be shown by unlawful entry with intent to commit theft. The statute does not expressly require an intent to steal property from within the burglarized premises and we hold there is no such requirement. We hold it is only necessary to prove that the unlawful entry was made for the purpose of furthering commission of the intended theft.

The intent with which appellant entered the habitation is a fact question for the jury to decide from the surrounding circumstances. Stearn v....