Waller v. State
| Decision Date | 02 February 1983 |
| Docket Number | No. 67758,67758 |
| Citation | 648 S.W.2d 308 |
| Parties | Paul Edward WALLER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
DALLY, Commissioner.
This is an appeal from a conviction for the offense of burglary of a building; V.T.C.A. Penal Code, Section 30.02; the punishment is imprisonment for 10 years.
V.T.C.A. Penal Code, Section 30.02(a)(1) provides:
"A person commits an offense if, without the effective consent of the owner, he: enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft,"
Although raised neither in the trial court nor on appeal, we are confronted with an indictment which is fundamentally defective under our holding in Ex parte Prestridge, 605 S.W.2d 922 (Tex.Cr.App.1980). In that case, in which there was a collateral attack on the judgment, we held that the indictment was fundamentally defective. It was there said:
In the indictment in the instant case it is alleged the appellant on or about September 27, 1979: "did unlawfully intentionally and knowingly enter a building without the effective consent of Ethel Phillips, the owner, and therein attempted to commit and committed theft," The indictment does not allege that the building was not open to the public, a necessary element of the offense of burglary of a building. Since the indictment does not allege an element of the offense it is fatally defective and reversal is required. Ex parte Prestridge, supra; cf. Allison v. State, 618 S.W.2d 763 (Tex.Cr.App.1981).
The judgment is reversed and the indictment is ordered dismissed.
Opinion approved by the court.
OPINION ON COURT'S OWN MOTION FOR REHEARING
Appeal is taken from a conviction for burglary of a building. Punishment was assessed by the jury at ten years.
This cause has been resubmitted on the Court's motion in light of the holding on original submission that the indictment was fatally defective in that it failed to "allege that the building was not open to the public, a necessary element of the offense of burglary of a building."
V.T.C.A. Penal Code, Sec. 30.02 "Burglary" provides in pertinent part:
The indictment in the instant case provides in pertinent part that appellant on or about September 27, 1979 did unlawfully:
"intentionally and knowingly enter a building without the effective consent of Ethel Phillips, the owner, and therein attempted to commit and committed theft."
Sec. 30.02(a)(1), supra requires that in an indictment where one enters a building "with intent to commit a felony or theft" there must be an averment that the building was "not then open to the public." Where the alleged offenses occur under Sec. 30.02(a)(2) and (a)(3), supra, no such averment is necessary. The Practice Commentary following this Section notes that while Sec. 30.02(a)(1) requires that entry be made with intent to commit a crime under Sec. 30.02(a)(2), no such intent must be proved at time of entry. The indictment in the instant case alleges entry without the effective consent of the owner and an attempt and commission of theft in conformity to Sec. 30.02(a)(3). Therefore it was not necessary for the indictment to contain an averment that the building "was not then open to the public."
In Ex parte Prestridge, 605 S.W.2d 922 (Tex.Cr.App.1980) it was stated "It is essential to the offense of burglary of a building that the building entered not be open to the public" in holding that the indictment there was fundamentally defective. The indictment in Prestridge was under Sec. 30.02(a)(1) and was defective for its omission of the essential element that the building was not open to the public. 1 Insofar as Prestridge or any other cases by this Court may be construed as holding that prosecutions under Sec. 30.02(a)(2) and (3), supra must include the averment that the building entered was not open to the public, they are overruled.
In two grounds of error appellant complains of the trial court's action in denying his motion to suppress his "admission leading to the fruits of the crime" and the overruling of a motion to suppress evidence obtained as the result of such admission.
After a warrant for the arrest of appellant was issued in Texarkana, Officer Sharpe of that city's police department secured the assistance of two Texarkana, Arkansas opolice officers to arrest appellant at the apartment of an Ada Faucett at the Bramble Courts in their city. Sharpe accompanied the officers and testified that upon appellant's arrest he read him his Miranda rights and in response to his questioning appellant stated that he understood them. Sharpe had earlier received information that items taken in the burglary were located at Faucett's apartment and he asked her permission to search the apartment. Faucett declined, and while Sharpe was discussing the possibility of getting a search warrant with the Arkansas officers, appellant interrupted the conversation and told Sharpe he wanted to talk to him. Appellant told Sharpe that Faucett had nothing to do with the burglary, that items that were taken in the burglary were at his sister's house and that he would take the officers to that location. Appellant was taken to the Texarkana, Arkansas Police Department where he was again advised of his Miranda rights. Appellant then called his sister and told her he had put a box of items underneath a bed in a back bedroom and that she was to give the items to the officers. Appellant then told the officers to go to "29 Ferguson, Texarkana, Arkansas." Upon arrival at this address a woman came to the door with a box containing a typewriter, radio and other items which were later identified by the victim of the burglary.
Contrary to Sharpe's version, appellant calls our attention to his testimony that he was not given the Miranda warning when he was arrested. Appellant further complains that he was not taken before a magistrate as required by Art. 15.17, V.A.C.C.P.
Absent a showing of a causal connection between a failure to take an accused before a...
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